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People v. Silveria and Travis ( 2020 )


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  •         IN THE SUPREME COURT OF
    CALIFORNIA
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    DANIEL TODD SILVERIA and JOHN RAYMOND TRAVIS,
    Defendants and Appellants.
    S062417
    Santa Clara County Superior Court
    155731
    August 13, 2020
    Justice Groban authored the opinion of the Court, in which
    Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
    Cuéllar, and Kruger concurred.
    PEOPLE v. SILVERIA and TRAVIS
    S062417
    Opinion of the Court by Groban, J.
    Defendants Daniel Todd Silveria and John Raymond
    Travis were convicted by separate juries1 of the first degree
    murder and second degree robbery of James Madden, and the
    second degree burglary of a LeeWards crafts store. (Pen. Code,2
    § 187, subd. (a), former §§ 189, 211, 212.5, subd. (b), 459, 460.2.)
    The juries also found true robbery-murder and burglary-murder
    special-circumstance allegations and an allegation that
    defendants personally used a knife in committing the murder.3
    (Former §§ 190.2, subd. (a)(17), 12022, subd. (b).) Silveria was
    also convicted of the second degree robberies of Ben Graber at
    Gavilan Bottle Shop and Ramsis Youssef at Quik Stop Market,
    and stipulated that on May 2, 1995, he had pled guilty to the
    1
    Defendants were tried jointly before separate juries.
    2
    All further undesignated statutory references are to this
    code.
    3
    Also as to Silveria, a lying-in-wait special-circumstance
    allegation was found not true, and the jury deadlocked on the
    allegation Silveria had used a stun gun and a torture-murder
    special-circumstance allegation. As to Travis, a torture-murder
    special-circumstance allegation was found not true, and the jury
    deadlocked on the lying-in-wait special-circumstance allegation.
    After the first penalty trial, the court granted the prosecutor’s
    motion to strike the torture-murder special-circumstance
    allegation as to Silveria and the lying-in-wait special-
    circumstance allegation as to Travis.
    1
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    second degree burglary of Sportsmen’s Supply. (§§ 211, former
    §§ 212.5, subd. (b), 459, 460, subd. 2.)
    Silveria and Travis also had separate penalty juries. Each
    jury deadlocked, and the court declared mistrials. Defendants
    were retried before a single penalty jury, the jury returned
    death verdicts, and the trial court entered judgments of death.
    This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a);
    § 1239, subd. (b).) For the reasons that follow, we affirm the
    judgments.
    I. FACTS
    On the night of January 28, 1991, Silveria, Travis,
    Christopher Spencer, Matthew Jennings, and Troy Rackley, a
    juvenile, robbed and killed James Madden while he was working
    as the manager of a LeeWards crafts store in Santa Clara
    County. The indictment charged all four adult perpetrators, but
    the cases of Spencer and Jennings were severed.
    A. Guilt Phase
    During interviews with different law enforcement officers,
    Silveria and Travis waived their Miranda rights, and ultimately
    confessed their involvement in Madden’s murder, including the
    circumstances that both men had stabbed Madden and Silveria
    had used a stun gun on him. (Miranda v. Arizona (1966)
    
    384 U.S. 436
    , 444–445.) Silveria also confessed his involvement
    in several other crimes, including the burglary of a gun store in
    which coperpetrator Jennings had obtained a stun gun, the Quik
    Stop robbery, and the robbery of a liquor store on Blossom Hill
    Road in which Silveria had used the stun gun. Each defendant’s
    statement was played for his jury.
    2
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    1. Prosecution Evidence
    a. Theft of stun gun and stun gun robberies
    On January 24, 1991, about 1:00 a.m., a PARALI/AZER
    stun gun was taken during a burglary of a Sportsmen’s Supply
    tackle and gun store located in an unincorporated area of Santa
    Clara County. About an hour later, at 2:20 a.m., Silveria,
    Rackley, and Jennings robbed Ramsis Youssef, a cashier at a
    Quik Stop Market located in San Jose. Rackley used a stun gun
    on Youssef during the robbery. A videotape of the crime was
    played for the jury. About 10:00 p.m. that night, Silveria,
    Rackley, and Jennings robbed Ben Graber, a temporary
    assistant at the Gavilan Bottle Shop, which was located on
    Blossom Hill Road in San Jose. A stun gun was used on Graber.
    b. Madden’s murder
    Silveria and Travis were hired to work for Madden at the
    LeeWards crafts store on September 3, 1990. They failed to
    appear for three consecutive scheduled shifts, and were
    permitted to resign rather than be terminated on November 15,
    1990.
    On the night of January 28, 1991, Silveria, Travis,
    Spencer, Jennings, and Rackley drove to LeeWards to rob the
    store. Madden’s truck was parked in the back lot and Spencer
    slashed the tire in order to prevent Madden from leaving.
    Silveria and Travis watched the front of the store until the last
    customer and the cleaning crew had left and Madden had locked
    the front doors. Silveria and Spencer then surprised Madden as
    he left the store by the back door. Madden was led back inside
    and ordered to turn off the store alarm. He was unsuccessful in
    doing so, and the alarm was triggered at 10:53 p.m.
    3
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Silveria instructed Madden to open the safe and remove
    the money. The money was placed into a duffel bag. Silveria
    and Travis bound Madden’s hands and feet respectively
    together with silver duct tape. At 11:02 p.m., a Honeywell
    Protection Services operator dispatcher called Madden, and he
    gave her the pass card number to clear the alarm. Madden’s
    mouth was then taped. Silveria held the duffel bag and
    repeatedly said, “Let’s go.” Travis said, “[N]o,” and told Spencer
    to kill Madden. Spencer slit Madden’s throat with a knife, and
    he and Travis repeatedly stabbed Madden. Silveria then
    stabbed Madden once, and used the stun gun on him. The five
    perpetrators fled to a Redwood City motel where they divided
    the money from the robbery.
    About 8:00 a.m. the next morning, Madden’s body was
    discovered in the store. Travis later told law enforcement
    officers that all of the perpetrators knew when they went to
    LeeWards they would have to kill Madden. The perpetrators
    chose LeeWards because it excited everyone to kill Madden. If
    one of the female supervisors had been present instead, Travis
    would have simply tied her up because he “got along with all the
    women over there.”
    Later that day Silveria purchased a Honda Civic and he
    and Travis purchased a Datsun 280Z; both vehicle down
    payments were in cash. On a Tuesday in January 1991, Silveria
    showed his friend Gregg Orlando a wad of cash, and said, “We
    killed somebody last night.” On the night of January 29, 1991,
    Silveria and Travis were arrested in the Oakridge Mall parking
    lot. A PARALI/AZER stun gun, silver duct tape, and $694 were
    found in Silveria’s vehicle.
    The cause of Madden’s death was 32 stab wounds to his
    neck, chest, and abdomen. Forensic pathologist Dr. Parviz
    4
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Pakdaman, who performed Madden’s autopsy, opined Madden
    was alive when some of the wounds to his neck and chest were
    inflicted.   Dr. Robert Stratbucker, a medical doctor and
    biomedical engineer, testified that a stun gun generally causes
    “a very intense kind of . . . sharp pain.”
    2. Defense Evidence
    In Silveria’s statement to police, he told officers that he
    had placed jeans, L.A. Gear shoes, and a T-shirt that he had
    worn during Madden’s murder in an Oakridge Mall garbage can.
    At trial, Silveria called only one witness, Elizabeth Skinner, a
    Santa Clara County crime lab criminalist, apparently to
    attempt to demonstrate that Silveria had a minimal role in the
    murder. Skinner testified that she had received from the Santa
    Clara Police Department a T-shirt, Levi’s, and a pair of L.A.
    Gear shoes, that she was told were found in an Oakridge Mall
    dumpster, to test for the presence of blood. No blood was
    detected on the T-shirt or the shoes. A small spot on the Levi’s
    tested presumptively positive for the presence of blood, but
    Skinner could not ascertain whether the stain was human blood.
    Skinner also tested shoes and jeans that she had been told had
    been collected at some point from Travis. She found human
    blood on the shoes and inside a front pocket of the jeans.
    Travis presented no defense evidence.
    B. Penalty Retrial
    Many of the individuals discussed in the testimony shared
    the same surname, so for clarity, we use first names to identify
    certain witnesses.
    1. Prosecution Evidence
    Much of the guilt phase evidence regarding Madden’s
    murder, the Sportsmen’s Supply burglary, and the Graber and
    5
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Youssef stun gun robberies was introduced at the 1997 penalty
    retrial.   Evidence of Travis’s 1990 first degree burglary
    conviction was also admitted. (Former §§ 459, 460, subd. 1.)
    a. Silveria’s former testimony
    Silveria’s statement to law enforcement was not admitted,
    but portions of Silveria’s first penalty phase testimony were
    read to the jury.
    Silveria had worked at LeeWards from early September
    1990 to Thanksgiving of 1990, and was instrumental in Travis
    being hired there. At times during this period, Silveria was
    homeless and used marijuana and methamphetamine.
    Silveria described Madden as “just a really nice guy.”
    Madden’s wife and young daughter occasionally visited him at
    the store. Silveria was terminated by Madden because of his
    work absences, but Madden allowed him to resign so that his
    future employment would not be adversely affected. Silveria
    then went to work at Toys “R” Us apparently for the Christmas
    holiday season.
    On January 26, 1991, the Saturday before the capital
    crime was committed, Travis was adamant that “Madden
    [would] need[] to be killed because he could identify us.”
    Silveria saw no need for anyone in the store to be harmed, and
    was “taken aback,” and immediately protested. Silveria and
    Travis debated the point. Silveria was feeling “horribly sick”
    that night, and left the discussion to lie down. His illness was
    not related to the discussion of killing Madden.
    On Sunday, January 27, while Silveria was still “very
    sick,” the topic of killing Madden arose again. Spencer held a
    knife and said he would be willing to stab Madden. Silveria did
    not intend to kill Madden and did not believe his coperpetrators
    6
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    would actually do so because they were not generally violent.
    Although Silveria initially suggested wearing disguises, the
    perpetrators did not do so. Silveria was ultimately not
    concerned if he was identified during the robbery because he
    planned to immediately flee the area. On Sunday night,
    Silveria, Travis, and the others drove to LeeWards to commit
    the robbery, but the store had already closed.
    Silveria’s description of the murder was similar to his
    statement to law enforcement introduced at the guilt phase. In
    addition, Silveria testified that on the night of Monday, January
    28, 1991, Silveria was armed with a stun gun, Travis a hammer,
    Spencer a fillet knife, Rackley a hand device with leather spikes,
    and Jennings a crowbar. At one point Silveria entered the store
    to see who was working that night.
    When Madden left the store, and Silveria and the others
    confronted him, Madden recognized Silveria, and appeared to
    calm down, saying, “Oh Danny, oh, it’s you, Danny.” Silveria
    told him to turn off the store alarm. Madden pleaded with
    Silveria that he not be hurt, and Silveria said: “We are not here
    to hurt you. We just want the money.” Silveria described
    Madden turning off the alarm, obtaining the money from the
    safe, being restrained in a chair by the perpetrators, speaking
    with the alarm company, and the perpetrators taping Madden’s
    mouth.
    Silveria fired the stun gun at Madden’s leg twice, once for
    a long period of time in an effort to render him unconscious.
    Madden made sounds like “somebody . . . trying to scream
    through tape,” and his legs jerked. Silveria then picked up the
    duffel bag and said several times, “Let’s go.” Travis told
    Spencer, “Kill him.” Madden said, “No, no” through the tape.
    7
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Spencer looked uncertain, and Travis repeated, “Kill him.”
    Spencer repeatedly stabbed Madden in the chest, and then at
    Travis’s direction, cut Madden’s throat. Silveria was numb with
    disbelief and did nothing to stop the attack except perhaps to
    once more say, “Let’s go.” Travis then stabbed Madden about
    five times, and handed the knife to Silveria, saying, “[I]t’s your
    turn.” At that point Madden was slumped over in the chair and
    appeared to be unconscious. Silveria initially protested, but
    then took the knife and stabbed Madden once, plunging the
    knife in all the way up to its hilt. Travis then resumed stabbing
    Madden. Silveria agreed with the prosecutor that Madden had
    been “tortured,” but did not believe he had “tortured
    Mr. Madden by legal definition.”
    After the attack ended, Madden fell over in the chair.
    Silveria felt a slight pulse in Madden’s neck, and they left. As
    they drove away, Silveria and others described the robbery as a
    success. Silveria said saying this made him feel “like crap”
    because he had just participated in killing someone. After
    Silveria’s arrest, he assisted law enforcement in apprehending
    Spencer and Jennings.
    Silveria did not believe causing Madden pain with the
    stun gun was “right,” and felt “horrible” for doing it. He felt
    “sick” about participating in Madden’s murder, and “horrible”
    about the effect of the murder on Madden’s family. Silveria did
    not feel that anything that had happened to him in his life was
    an excuse for what he did on the night of Madden’s murder, but
    rather that he “should be held accountable for what [he] did,”
    and “deserve[d] whatever punishment [was] given to” him.
    8
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    b. Other prosecution evidence
    Dr. Pakdaman testified that Madden had suffered
    32 “slash-like superficial cuts” that were skin-deep and “stab-
    like wounds” in his neck, chest, and abdomen. Six stab wounds
    penetrated Madden’s heart. Other stab wounds penetrated his
    lungs, fracturing two ribs, and his liver and trachea. He was
    alive after his trachea was cut, although his breathing was
    impaired. Dr. Stratbucker testified that marks made by the
    stun gun on Madden’s thigh were inflicted while he was alive.
    California Men’s Colony Correctional Lieutenant Jackie
    Graham testified that in September 1991, Charles “Tex”
    Watson, a member of the “Charles Manson Family,” was a
    prisoner at the colony. On about September 20, 1991, a letter
    from Travis to Watson was intercepted.4
    The prosecution also introduced victim impact testimony.
    Shirley “Sissy” Madden testified that she and Madden were
    married in 1979. Madden was a kind and loving husband, and
    made Sissy feel cherished and safe. Their daughter Julie was
    born in 1984, and Madden was a wonderful father.
    Sissy testified regarding seeing Madden for the last time
    several hours before his murder. On January 28, 1991, about
    6:30 p.m., Sissy and Julie, then seven years old, made an
    unplanned visit to Madden at LeeWards, but declined his dinner
    invitation because Julie had school the next day.
    Susan Thuringer, Sissy’s coworker at the University of
    California at Santa Cruz, testified Sissy arrived late to work the
    following morning, distraught because Madden had not come
    home and she did not know where he was. Later that morning
    4
    The letter was further described by Travis in his penalty
    phase retrial defense testimony. (See post, at pp. 29–30.)
    9
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Thuringer learned from police about Madden’s murder.
    Thuringer told Sissy, and she and her coworkers restrained
    Sissy as she screamed and cried. Police arrived, and Thuringer
    and her supervisor, Kay House, and an officer accompanied
    Sissy home. James Douglas Sykes II, Madden’s brother-in-law,
    testified that later that day he and Sissy picked up Julie at
    school. When they arrived home, Sissy took Julie upstairs to tell
    her about Madden’s death. Sykes heard an “excruciating[ly]
    painful waning scream” from Julie.
    Testimony regarding the effect of Madden’s death on Sissy
    and Julie was also introduced. Sissy testified, “I loved my
    husband so much and I feel so lonely and empty without
    him. . . . I miss him terribly.” Sissy’s brother, Eric Lindstrand,
    testified that Sissy was “devastated,” and “a good part of her life”
    at the time of his testimony was “just a big, sad open wound.”
    Julie was “a blessing” who kept Sissy “going.” Madden’s mother,
    Joan Madden, said that since Madden’s death, Sissy had gained
    at least 30 pounds, and suffered from depression and psoriasis
    induced by stress.
    Sissy testified that Julie had slept with her every night for
    the first year after Madden’s death, and had been in therapy for
    nearly six years.        She suffered from panic attacks and
    stomachaches so severe “she feels like she is going to die.” Eric
    testified that Julie was so frightened by her father’s murder that
    for a long time she would not let Sissy out of her sight even to
    use a restroom, and her development regressed five or six years.
    She had also struggled academically. Joan testified she once
    took Julie shopping for a Mother’s Day gift, and Julie asked,
    “You know, Grandma, what I really, really want?” Joan said,
    “No,” and Julie said, “I wish[] you only died for one day.”
    10
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Family members also described their own loss. Judith
    Sykes, Madden’s older sister, testified that Madden had been
    her only sibling. They were close, and she described Madden as
    a strong, but kind and gentle person who had cared for his
    family. When asked if the passage of time had lessened the
    impact of Madden’s death, she said that because Madden had
    been “murdered senselessly and brutally. . . . the closure is not
    the same . . . [a]nd there’s something about it you . . . just can’t
    get past. . . . [I]t’s not like losing someone from a heart attack.”
    Their mother Joan often said that “the joy in her life [was] gone,”
    and she was now overly protective of Judith.
    Eric described Madden as a close friend and “good man”
    who had generously shared his time to help Eric and who had
    enjoyed life. Eric said living without Madden has “been hell for
    me,” and described it as “learning to live without a heart . . . .
    [or] without your legs. You learn how to survive. If you’re lucky,
    you learn how to try and not let your life be ruined.”
    2. Defense Evidence
    a. Silveria
    (1) Background and character witnesses
    Silveria, who was born on December 22, 1969, was
    21 years old at the time of the January 1991 crime. He
    presented numerous witnesses who testified regarding his
    childhood and his behavior in jail after commission of the capital
    crime.
    Silveria had an older sister Lenae, an older brother S.S.,
    and a younger brother Michael. Silveria’s father, Daniel
    Silveria (Daniel), a long-haul trucker, was often away from
    home. He brought gifts to Lenae when he returned and was
    affectionate to her. By contrast, he showed no affection to
    11
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Silveria, S.S., or their mother B.S., and was frequently
    physically abusive to them. In April 1974, when Silveria was
    four years old, Daniel left the family, and Silveria had little
    contact with him until Silveria was about 19 years old.
    In February 1976, when Silveira was six years old, at
    B.S.’s request he and S.S. were declared dependents of the court.
    B.S. retained custody of Lenae and Michael. Lenae recalled that
    after Silveria and S.S. were declared court dependents, B.S., an
    alcoholic, began to drink excessively, staying out all night and
    coming home drunk.
    Silveria lived in foster homes for nearly all of his
    remaining childhood. Two foster families, the Garcias and the
    Gambles, were nurturing and emotionally and financially
    supportive. In two other families, the Heberts and the Georges,
    however, Silveria was sexually abused and emotionally
    neglected.
    Linda Cortez, a Santa Clara County Department of Social
    Services social worker, supervised the Silveria family, including
    Silveria, S.S., Lenae, and Michael from March 1976 until the
    end of 1981.5 During this time Silveria was a sweet and likeable
    child, who was eager to please.
    Silveria was first placed for about a year in the home of
    Marcus and Lorain Garcia, where he was well-treated and
    thrived. When Silveria was about seven years old, the Garcias
    moved out of Santa Clara County, and he joined S.S. in the
    Hebert foster family.
    5
    Many of Cortez’s department of social services reports
    could not be located at the time of her testimony and had
    presumably been destroyed.
    12
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Mark Hebert, worked as a civilian for the Navy, and his
    wife Evelyn Hebert was a nurse. Dean Hebert, who was about
    three years older than Silveria, testified that his father
    Mr. Hebert was an alcoholic, who when drunk became verbally
    abusive. Mr. Hebert would not engage with Dean, his older
    brother Mark, Silveria, or S.S., and would only speak to “put
    somebody down or just to yell at somebody.” His mother, Mrs.
    Hebert, inflicted physical punishment on Silveria.
    Dean frequently beat Silveria, once burned him with
    matches, and once placed a pillow over Silveria’s face until he
    could no longer breathe or scream. When Silveria was 11 years
    old, Dean forced him to perform oral and anal sex.
    Robert Ector, Silveria’s fourth grade teacher at the time
    Silveria lived with the Heberts, testified that Silveria was an
    average or below average student who worked hard and wanted
    to please Ector. Silveria was intelligent, but had “suffered . . .
    academically” apparently because of a lack of parental support
    with his schoolwork. That was unusual in the “solidly middle-
    class community.” Silveria frequently volunteered to stay after
    school to perform small tasks for Ector, and on field trips he
    “always wanted to be near my side.”
    Between 1976 and 1981, Silveria’s father visited him once.
    B.S. visited Silveria about three times a year, and once cared for
    him for several days after he had wandering eye surgery.
    In late 1980 or early 1981, Cortez told B.S. that if she did
    not become actively involved in returning Silveria home by
    establishing a visitation plan, Cortez would locate a long-term
    placement for him. The ensuing visits were successful, and
    Silveria was scheduled to return to live with his mother in June
    1981.
    13
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    During a visit home in April 1981, Silveria told his mother,
    and then Cortez, that Dean had molested him. Cortez
    determined that Silveria should not return to the Heberts, but
    should stay in his mother’s care. Silveria did not receive therapy
    as a result of the molestation report. His dependency case was
    later dismissed.
    In the fall of 1981, when Lenae was about 14 years old, she
    moved in with the nearby family of her friend Tasha Guimmond,
    whose father Richard Guimmond was the assistant and resident
    manager of the apartment complex in which the Silverias lived.
    Richard Guimmond described their neighborhood as a “ghetto.”
    When Lenae visited her family, she observed B.S. continued to
    go out drinking, and failed to exercise control over Silveria. The
    Guimmonds and Lenae moved out of the complex in about 1983,
    and Lenae did not speak to Silveria until late 1990.
    In April 1982 then San Jose Police Officer Michael George
    (George) brought 12-year-old Silveria home to live with him, his
    wife Deborah, and their children. Silveria lived with the
    Georges for about eight months. Deborah displayed no affection
    for Silveria. George was attentive to Silveria, even more so than
    to his biological family.
    Defense investigator Daniel DeSantis testified that in
    about April 1996 he learned that George, who had also served
    as a Clearlake police officer, had in May 1996 been convicted in
    Lake County of 11 counts of child molestation for crimes
    committed against a different child. (§ 288, subd. (a).) On
    October 3, 1996, DeSantis and Silveria’s defense counsel
    interviewed George in prison. George expressed concern for his
    life because he was a former police officer and a convicted child
    molester, and said he did not expect to leave prison alive.
    George admitted that when Silveria lived with him, George had
    14
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    on different occasions given Silveria rum and coke and then
    molested him by engaging in “mutual masturbation and oral
    copulation.” George expressed remorse for what he had done to
    Silveria, and agreed to testify at the penalty retrial.
    On February 13, 1997, DeSantis again met with George.
    George was no longer willing to testify, but did not retract his
    earlier statements made during the first interview.
    In May 1983, when Silveria was 13 years old, he left the
    Georges’ home and went to live with the Gambles. John Gamble
    testified that he and Silveria, whom Gamble identified as his
    brother, were the same age and had met in the sixth grade while
    Silveria was living with the Georges. Silveria had been a
    peaceful child and John’s best friend. John’s mother, Patricia
    Gamble, who worked in the family support division of the Santa
    Clara County District Attorney’s Office, testified that Silveria
    moved into their home with only a bird book, a picture of Jesus,
    and clothing so worn much of it had to be discarded.
    The Gambles were loving and supportive of Silveria, and
    treated him like a member of the family. Silveria was protective
    of John and his younger sister Lisa, and performed additional
    household chores on his own initiative. Silveria was respectful
    to Patricia and her husband, and called Patricia “Mom.” He was
    also was good at sports, especially football.
    To assist with Silveria’s separation from his parents,
    Patricia placed him in therapy. Silveria asked to be removed
    from therapy after six to eight sessions.
    Patricia and Silveria visited B.S. soon after Silveria moved
    in, and Patricia invited her to call and visit Silveria. B.S. often
    seemed indifferent to Patricia’s and Silveria’s attempts to
    contact her, and showed Silveria little affection when she saw
    him, once not even getting up to greet him when he visited her.
    15
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Julie Morrella testified she was Silveria’s girlfriend from
    1984 to 1985 when they were 14 to 15 years old. Silveria was
    loving and attentive, and demonstrated a need for affection. He
    never mistreated Morrella, and she never saw him be violent.
    In March 1985, when Silveria and John Gamble were
    15 years old, John’s father moved out of the house. About this
    time, John and Silveria began to smoke marijuana and drink
    alcohol. Silveria became angry and violent when drunk, and
    once lay on the kitchen floor kicking and screaming, “I hate this
    shit.” On a different occasion he cut up the kitchen cabinets
    with a knife.
    When Silveria was 15 and a half years old, Patricia took
    Silveria without protest to juvenile hall for several days because
    of his alcohol abuse.       She again provided Silveria with
    counseling for about a month until Silveria was sent to the boys
    ranch in Morgan Hill for about five months for violating his
    probation by drinking. Patricia visited him every weekend until
    he was allowed to come home on weekends. Patricia invited
    B.S., Silveria’s mother, on several occasions to join her on these
    visits to the boys ranch, but B.S. declined. After Silveria
    returned home from the ranch, and before July 1987, he was
    placed into a group home in Soquel until he was about 18 years
    old because of his alcohol use.
    In February 1988, when Silveria and John were about
    18 years old, Patricia moved to Sacramento. Silveria lived with
    Patricia intermittently from 1988 to 1989. John visited Silveria
    numerous times in Sacramento and observed his mother
    continued to love and support Silveria. In the fall of 1989, while
    living in Sacramento, Silveria slit his wrists, received medical
    attention, and Patricia sent him back to San Jose to live. She
    did not see him again until after his arrest.
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Also at some point in 1988 to 1989, Silveria lived in Gilroy
    for several months with his cousin Geraldine Macias and her
    husband, both postal service workers, and their two young
    children. During this period, Daniel, Silveria’s biological father
    and Geraldine’s uncle, also lived in Gilroy. Geraldine trusted
    Silveria — but not Daniel — to babysit her children.
    After Silveria left Geraldine’s home, he lived for at least
    six months with Daniel in Gilroy.             They used “crank”
    (methamphetamine) and marijuana. Daniel was physically
    abusive to Silveria, and Silveria eventually moved out after
    Daniel broke Silveria’s nose.
    In August 1990, Patricia Gamble was contacted by an
    Army recruiter for Silveria’s diploma because Silveria was
    trying to enlist. Later that year, Lenae happened to work with
    Silveria at Toys “R” Us for the holiday season. During that time,
    Lenae observed Silveria lost weight, developed acne and poor
    hygiene, and appeared to be using drugs.
    Patricia visited Silveria frequently after his January 1991
    arrest. Silveria told her he had stabbed Madden. On several
    occasions Silveria said that he was sorry, was praying for the
    Madden family, and “knows how it feels to grow up without a
    father and that it hurt him to know that Julie [Madden’s
    daughter] now would not have a father to grow up with.”
    In 1991, Silveria and Patricia both studied the Bible and
    shared with each other what they had learned. Silveria’s
    biblical knowledge and insight appeared to increase over time.
    He exhibited “an excitement and a real joy about what he was
    learning.” In late 1993 she stopped visiting Silveria, but
    eventually resumed communicating with him by letter. Patricia
    loved Silveria because “there was something very good in him,
    something very sad . . . . I see that value.”
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    PEOPLE v. SILVERIA and TRAVIS
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    Morrella also visited Silveria in jail frequently for about a
    year from 1991 to 1992, and later resumed visits. Silveria was
    initially cold to her and his physical appearance was poor. Over
    time, his demeanor and physical appearance improved.
    Morrella was now a Christian, and at one point during her visits
    she and Silveria began to discuss religion. Silveria was very
    excited during these discussions, would quote scriptures, and
    would often bring a Bible or Christian book to their meetings.
    Silveria told Morrella he felt “very bad about the fact that
    Julie,” Madden’s young daughter, “was going to grow up without
    a father.” Silveria said “he had been praying for the family and
    that he . . . felt terrible and that he was just continuously
    praying for them. He was very remorseful.” Silveria did not
    tell Morrella he had stabbed and used a stun gun on Madden.
    Morrella believed Silveria was a loving and valuable person who
    had “done a lot of good[] things.”
    John Gamble had visited Silveria about five times in the
    six years since Silveria had been incarcerated, and had never
    spoken to him on the telephone. John loved Silveria and enjoyed
    his visits with him. Lenae testified that she loved Silveria, and
    believed that “[f]rom [d]ay one he never had a fair shot. He’s
    pretty much struggled ever since he came into this world.”
    Several officers testified regarding Silveria’s behavior in
    jail. Santa Clara County Correctional Officer Victor Bergado
    testified that when Silveria was first incarcerated, he appeared
    to be “emotionless,” a “hard person” who “didn’t really . . . say
    much to anybody.” Three to four months later, during a random
    check, Officer Bergado observed Silveria kneeling with his arms
    over his bunk. Officer Bergado asked if Silveria was “Okay.”
    Silveria turned his head toward the officer and appeared
    distraught. He explained he had been praying, and said, “I’m
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    just really . . . sad . . . for the family of the victim.” He was
    “asking for forgiveness and he’s sorry for what he did and he
    feels sorry for the family of his victim and his family.” Officer
    Bergado and Silveria discussed their shared Christian beliefs.
    Periodically thereafter for several years, they had discussed
    Christianity and lessons Silveria had learned from the Bible.
    Silveria was well-behaved and shared commissary items with
    other inmates.
    Former Santa Clara County Sheriff’s Deputy Patrick
    Doyle testified that several months after Silveria had been
    incarcerated, he began to ask Deputy Doyle, a former
    missionary who was referred to by inmates and deputies as
    “Father Doyle,” questions about the Bible and started a Bible
    study group. Deputy Doyle believed Silveria’s Christian faith
    was sincere because of his conduct, joyfulness, and the
    frequency with which Deputy Doyle observed him kneeling by
    his bunk. Silveria did not engage in physical altercations with
    other inmates, commit assaults on correctional staff, or display
    behavioral problems. He had not been caught possessing
    weapons, drugs, or alcohol.
    Department of Corrections Officer Lauren Dennehy
    testified that Silveria was intelligent, cooperative, and
    volunteered for additional jobs. Silveria appeared to go out of
    his way to welcome new inmates, and at Officer Dennehy’s
    request, had provided orientation for inmates new to the
    module. Santa Clara County Correctional Officer Edwin
    Lausten observed that Silveria was empathetic to other
    inmates, and had appeared to twice successfully intervene with
    inmates who were struggling emotionally.
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    (2) Expert witnesses
    Reverend Leo Charon testified he had worked in the Santa
    Clara jail for 15 years. He had not previously testified on behalf
    of any inmates other than Silveria and Travis. (See post,
    pt. I.B.2.b.2.)
    Reverend Charon had known Silveria, whom he met when
    Silveria started attending his jail Bible study, for about five
    years. Silveria asked thoughtful questions in Bible study, had
    requested different Bible versions to compare text, and had
    studied Greek to read parts of the Bible in its original tongue.
    Silveria’s spiritual gift was teaching, and he wanted to use that
    gift to help other inmates. Reverend Charon believed it “would
    be very difficult” to feign the level of study and depth of interest
    Silveria had shown over the years in Christianity.
    About a year after starting Bible study, Silveria began to
    meet individually with Reverend Charon.               Silveria had
    displayed “brokenness,” a process whereby one honestly
    confesses sins and feels true sorrow for them. Silveria had told
    Reverend Charon he had stabbed Madden, and had used a stun
    gun on him. They periodically discussed Silveria’s remorse
    about Madden’s murder, and Silveria’s concern for Madden’s
    wife and family.
    Dr. Harry Kormos, a psychiatrist at the University of
    California Hospital in San Francisco and Alta Bates Hospital in
    Berkeley, conducted a psychiatric evaluation of Silveria, and
    testified as an expert on the effects of childhood neglect and
    abuse on the development of adult personality. Dr. Kormos had
    interviewed Silveria 12 to 15 times in 1993 and 1995, and had
    reviewed Silveria’s former testimony concerning his life until he
    was 21 years old, summaries of other testimony, case
    statements of fact, investigative reports, witness interviews,
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Silveria’s birth medical records, and a report regarding
    Silveria’s psychological tests. Silveria told Dr. Kormos he did
    not want “anything about his past to be used in a way to excuse
    what he had done because he didn’t feel that there was an
    excuse.”
    Dr. Kormos opined that Silveria did not suffer from manic-
    depressive illness, an antisocial personality disorder,
    posttraumatic stress disorder, conduct disorder, organic brain
    damage, fetal alcohol syndrome, or subnormal intelligence. He
    did suffer from child neglect, and alcohol and methamphetamine
    addiction.
    Dr. Kormos described child neglect as a long-term
    situation in which the child did not receive the support
    necessary for normal development, and in addition was
    mistreated by “those charged with [the child’s] well-being.” Low
    self-esteem and decreased ability to delay gratification were
    general issues often seen in those neglected during childhood.
    Depression, drug addiction, and delinquency were negative
    outcomes that “can be traced back to a situation of child neglect.”
    In Dr. Kormos’s view, Silveria had never bonded with his
    parents. Silveria had only two memories of his father while the
    family was intact. In one, his father responded to Silveria
    spilling food by violently throwing him down a flight of stairs.
    In the other, Silveria brought home a stray dog, and his father
    killed it by repeatedly hitting it with a shovel. Dr. Kormos
    concluded Silveria was likely traumatized by his father’s
    violence. Silveria acknowledged problems with his parents, but
    nevertheless retained “a positive image of both his mother and
    his father.”
    Silveria told Dr. Kormos that he had also been sexually
    abused by Dean Hebert’s older brother Mark. Dr. Kormos
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    PEOPLE v. SILVERIA and TRAVIS
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    compared the constant and severe punishments, sexual abuse,
    and shaming or tormenting inflicted on Silveria at the Hebert
    home to a concentration camp. He explained, “[T]he person
    subjected to this feels terrorized, feels threatened every day, has
    nowhere to turn and is completely in the power of the persons in
    charge who are not concerned about [his] well-being in any way.”
    Silveria told Dr. Kormos he had no way of knowing his
    experience at the Heberts was abnormal, and also assumed that
    if he complained, worse punishment would occur.                  In
    Dr. Kormos’s view, psychological therapy was indicated for
    Silveria when he reported Dean Hebert’s sexual abuse and was
    removed from the Hebert home.
    Dr. Kormos opined that Silveria’s molestation by Police
    Officer George would have made it difficult for him to “correctly
    interpret the nature of authority and of legal behavior.” Silveria
    told Dr. Kormos that “it had always been useless for him to
    dwell on problems that had occurred in his life . . . because there
    was . . . nothing that he could possibly do about it. So . . . the
    best thing to do would be to try and push it out of his mind which
    is really a very primitive, a very impaired way of dealing with
    reality.”
    Dr. Kormos was of the view that Silveria, Travis, Spencer,
    and Jennings “were quite close due to the fact that they were all
    very much . . . in need of emotional support.” They helped each
    other by being together and it was “almost like they were trying
    to make up an artificial, a pseudo-family.”
    Dr. Kormos further opined that the older a child gets, the
    less likely it is that positive intervention will reverse earlier
    damage. Dr. Kormos was of the view that “there was an unusual
    accumulation of negative factors in this particular case, more
    than you would ordinarily see on the average.” He agreed with
    22
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    defense counsel that a person with Silveria’s background of
    failure to bond with either biological parent, and his experiences
    of neglect, abandonment, physical abuse, sexual abuse, and
    emotional abuse, would be impaired in his ability to make
    rational choices later in life, because “there would likely be such
    distortions in his views of the world that his decisions are likely
    to be skewed.” He subsequently added, “I think their entire
    world view would be impaired, and that would certainly have an
    effect on all decisions they make.” He also testified that a “solid
    majority” of persons who had suffered abuse similar to that
    suffered by Mr. Silveria “would indeed suffer from severe
    psychiatric and psychological problems,” including criminality,
    later in life.
    James Park, a former San Quentin associate warden,
    testified as an expert on prison classification and on the security
    for prisoners serving sentences of life imprisonment without the
    possibility of parole. Park described the four security “levels” of
    prisons, with level four being the most secure prisons.
    Park stated that a person serving a sentence of life
    imprisonment without the possibility of parole “will never be
    paroled,” but could earn credits that would allow him or her to
    be considered for incarceration in a level three prison. Park
    observed that life imprisonment prisoners were required to
    work, and could receive an education, play sports, have a
    television, and purchase books and magazines, but were denied
    conjugal visits.
    In 1995, Park interviewed Silveria, and reviewed capital
    crime fact summaries and Silveria’s jail records up to the
    summer of 1995. Silveria displayed a “positive and productive”
    outlook, and had spent his jail time constructively by studying.
    Park had seen no evidence that Silveria had been involved with
    23
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    drugs or weapons while incarcerated, and his infractions while
    incarcerated had created no danger to jail personnel or other
    inmates. Park opined that if Silveria were serving a sentence of
    life imprisonment without the possibility of parole, he would
    “make a good adjustment,” and would not be “a threat or a
    danger to other staff or other inmates.” “[I]n short I think he
    will be a substantially better than average prisoner.”
    b. Travis
    (1) Travis’s background
    Travis, his mother Pamela M., and his younger sister D.S.,
    described Travis’s childhood. Pamela married Travis’s father,
    John Travis, Sr., in about November 1967. Travis was born in
    December 1969. Pamela did not drink alcohol or take any
    nonprescription drugs while she was pregnant with Travis. D.S.
    was born in 1973.
    John, Sr. abused alcohol and was unfaithful to Pamela.
    Once when Pamela was seven months pregnant with D.S., he
    was physically violent with Pamela, punching her in the
    stomach and face, leaving extensive bruising, and causing her
    to bleed. He never physically abused Travis.
    During the first five years of Travis’s life, John, Sr., was a
    good financial provider, but never told Travis he loved him, or
    hugged or kissed Travis. In late 1974 or early 1975, when Travis
    was about five years old, Pamela separated from John, Sr. For
    about two years she, Travis, and D.S. lived with relatives, other
    than a few months in 1975 when they lived with Larry Holly. In
    1976, Pamela — who was pregnant with Holly’s son Joseph —
    Travis, and D.S. moved to an apartment on Bendorf Drive in
    San Jose that was filled with roaches and had leaks that caused
    the ceiling to disintegrate. John, Sr., had no relationship with
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    his children and provided financial support only when “ordered
    to.”
    Travis and D.S. recalled that Pamela was loving,
    supportive, and a “very good mom” who worked hard to support
    the family. Pamela testified that she did not use drugs or abuse
    alcohol. The family was religious and held “family devotions” or
    Bible study. Travis had been baptized and attended church and
    Sunday school. He attended religious youth classes at the Los
    Gatos Christian Church until he was about 15 years old.
    During elementary school, Travis was responsible for
    getting himself and D.S. to school because his mother worked at
    night and was asleep in the morning. When Travis came home
    from school, his mother was at work, so he would make dinner,
    and would occasionally put D.S. and Joseph to bed when their
    mother worked late.
    When Travis was seven years old he began smoking
    marijuana. He began drinking alcohol before the age of 14, and
    perhaps at 10 or 11.
    In 1979, when Travis was about 10 years old, Pamela
    married Joseph Carvalho, and the family’s financial situation
    improved. Carvalho often took Travis fishing and treated him
    as his own son, but was physically violent when inflicting
    discipline. Carvalho disciplined Travis for minor infractions by
    spanking his bare bottom with a belt or cutting board, once
    breaking a one-inch thick cutting board on Travis’s backside.
    Pamela never intervened.
    Carvalho and Pamela frequently fought over finances, and
    their verbal arguments generally escalated into physical fights.
    Travis once saw Carvalho pick up Pamela and slam her body
    onto a table. Travis felt intimidated and helpless. When Travis
    was 14, he came home to see Carvalho and Pamela wrestling,
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    and Carvalho pin Pamela down and hit her. Travis intervened,
    and Carvalho and Travis fought until Carvalho pushed Travis’s
    head through a sheetrock wall.
    In about 1981, when D.S. and Carvalho’s daughter S. were
    both about eight years old, and Travis was at least 12 years old,
    Carvalho was arrested for molesting D.S. and S. Travis was
    devastated when he learned of the molestations. He and D.S.
    had previously been close, but Travis felt ashamed because he
    had failed her. When Travis was about 15 years old, Pamela
    divorced Carvalho and obtained a restraining order against him.
    Travis was a poor student in high school, and from the
    ages of 14 to 16, he periodically was truant from school. He
    started using methamphetamine when he was about 15 years
    old, and continued to use marijuana and alcohol.
    When Travis was about 16 years old, he and his mother,
    who was concerned about his misbehavior, agreed Travis should
    live with his biological father, John, Sr., in North Carolina.
    Travis had not seen John, Sr., since he was five years old, and
    was looking for support and to establish a relationship with his
    father. Once in North Carolina, Travis and John, Sr., performed
    construction work and drank alcohol and used drugs together,
    but did not develop a closer bond.
    After about a year, Travis returned to California. He did
    not attend school, and dropped out of high school in his junior
    year when he was about 17 years old.
    Travis committed several burglaries, and went to North
    Carolina to again live with John, Sr., when he was about 18
    years old to avoid an arrest warrant. Travis ultimately returned
    to California to turn himself in. He suffered a felony conviction
    for first degree burglary and served about 10 months in county
    jail. During this time, Travis was a jail “trustee,” performing
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    such assignments as delivering the canteen to the women’s
    lockdown. Travis was released from jail when he was 19 years
    old.
    Pamela was largely unaware of Travis’s activities as an
    adult, and saw him little in 1990. She did not know what he
    was like or what he doing in January 1991, the month Madden
    was murdered. Pamela believed she had “disappointed [her]
    children a great deal” and “abandoned them” from their late
    teenage to their adult years.
    Travis obtained the job at LeeWards in 1990, and worked
    there for about two months. He once saw Madden’s wife and
    daughter in the store. Travis used drugs while on the job and at
    times did not show up for work.
    At some point after leaving LeeWards, Travis became
    homeless and could not provide himself food or regular hygiene.
    He felt empty inside, and spent his 21st birthday in the back of
    Spencer’s car. Travis considered committing crimes to get
    “money for [his] drug habit.” Travis had long stolen items, but
    he had never hurt anyone.
    On about January 24, 1991, Jennings told Travis someone
    had taken his pager. Travis confronted the man holding the
    pager, and the two fought. Travis was hit in the face with brass
    knuckles, and received a cut lip and a broken nose.
    D.S. saw Travis on about January 27, 1991. His “eyes
    looked dead and he looked like he [had] lost his soul.” He
    appeared to be cold, distant and “mad at the world.” His nose
    was broken, his lip cut, and his clothes were bloody. Travis told
    D.S. she did not have to worry about money anymore, or live like
    she was living.
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    PEOPLE v. SILVERIA and TRAVIS
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    (2) Travis’s testimony regarding the murder
    and jail
    On the night of Sunday January 27, Travis told Silveria,
    Jennings, Spencer, and Rackley that whoever was working as
    the LeeWards manager would have to be killed because Travis
    did not want to be identified and go to prison. Silveria said, “No,
    no way,” and left the discussion. Travis recalled no discussion
    of masks or other methods of hiding the perpetrators’ identity.
    They drove to LeeWards that night but the store was already
    closed.
    On Monday, January 28, Travis, Silveria, Spencer,
    Jennings, and Rackley again drove to LeeWards. Travis
    described confronting Madden, obtaining the store funds, and
    restraining Madden, and the telephone call with the alarm
    company. Travis turned to Spencer and quietly told him to kill
    Madden so that Madden would not overhear the command.
    Spencer was hesitant, so Travis repeated, “Kill him.” Madden
    began to fidget.
    Silveria said, “Let’s go.” Spencer cut Madden’s throat, and
    then began stabbing him. Travis was excited, but not because
    he “enjoy[ed] it.” Silveria used the stun gun on Madden while
    Spencer was stabbing Madden. Spencer then handed the knife
    to Travis and ran out. Travis repeatedly stabbed Madden.
    When Travis was done stabbing, he felt “empty.”
    Travis was able to kill Madden because “I didn’t care about
    myself or anybody else,” “I just gave up.” Travis was “mad” and
    “wanted somebody to pay” for “[e]verything that happened in my
    life. . . . I was blaming others for the position I found myself in
    due to my own actions.” Travis thought the money from
    LeeWards would give him a “new life, a new identity.” Travis
    was not blaming Madden’s murder on Travis’s rage, poor
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    relationship with his father, or drugs and alcohol, but he
    believed “these are major factors that built up to something like
    this.”
    On cross-examination, a recording of Travis’s statement to
    law enforcement was played for the jury. Travis said he wanted
    Spencer to stab Madden first to prove himself. When Travis told
    Spencer, “Kill him,” Travis felt powerful.
    During Travis’s first nights in jail after he was arrested,
    he met an inmate who spoke to him about Jesus. Travis had put
    God “to the side” when he was 14 years old, because he had
    “wanted to live [his] own life, do what [he] wanted to do.” Travis
    was tremendously affected by the inmate’s words, explaining
    they “showed me just what type of person I had become.”
    Travis began to listen to a radio prison ministry by
    Chaplain Ray from Texas. He also read a book entitled “Will
    You Die For Me, Tex Watson as told to Chaplain Ray.” In the
    book, Watson, a convicted murderer, follower of Charles
    Manson, and a drug addict, described his crime, his arrest, and
    his conversion to Christianity. Travis was impressed that a man
    of Watson’s notoriety had “receiv[ed] Christ Jesus.”
    In September 1991, Travis wrote to Watson. Travis said
    he was also incarcerated for murder, and that “[t]hey used to
    call me ‘Baby Manson’ because of the power of mind control I
    had on my friends.” Travis wrote that he had stabbed Madden
    “repeat[e]dly” and “enjoyed every moment of it.” Travis also
    said, “As we fled, I felt this empt[i]ness inside me,” and that he
    had “re-received Jesus Christ as [his] Lord and Savior” and
    repented of his sins. Travis felt a peace within, and knew he
    was forgiven for his sins, “even murder.”
    At the penalty retrial, Travis explained he wrote the letter
    because he and Watson were in the same situation, and Christ
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    PEOPLE v. SILVERIA and TRAVIS
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    had changed both of their lives. He said he had told Watson he
    enjoyed stabbing Madden because in Travis’s confession to
    police he had minimized his participation in the murder by
    saying he had only stabbed Madden twice. Madden had been
    stabbed 32 times, not twice, and Travis was “judging myself,
    condemning myself and putting myself down and thinking I
    must have enjoyed this to do something so heinous like this.”
    Rather, when Travis stabbed Madden, “I was releasing my
    anger . . . . my adrenaline[,] my paranoia, everything.”
    In 1992, about a year after writing Watson, Travis,
    Jennings, and several others planned an escape from jail.
    Travis was angry at God at this time because Travis’s young
    nephew had died. Travis was shown a cell bar that had been cut
    half-way through, and he tried to cut the bar more using a wire
    from a chair. Travis also collected sheets to use as a rope. He
    did not plan to hurt anyone.
    Before the escape plan was executed, one of the inmates
    reported the plan, and Travis was relocated. He was not
    charged with a crime as a result of his participation, and was
    subsequently made a trustee in his new jail location by Santa
    Clara County Department of Corrections Officer David
    Damewood. Travis had also been chosen by to be a trustee when
    housed in a different part of the jail, and had worked as a
    “trustee helper” for Officer Limbocker. He had not had any
    serious rule infractions in the four or five years preceding his
    testimony.
    After the failed escape plan, Travis realized he had been
    “making the wrong decisions,” and “started thinking real hard
    about what I want[ed] to do with my life.” He began recovery
    and started learning about Alcoholics Anonymous (AA) and
    Narcotics Anonymous. He also began to work with Reverend
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    Opinion of the Court by Groban, J.
    Charon. No AA meetings were available where Travis was
    housed.
    Travis had also participated in the jail’s Tutor Program,
    which helped inmates learn to read and do math. He often
    shared his message of recovery with these individuals. It was
    his “heart’s desire . . . to help those who have been in the same
    situation I have.”
    Travis testified that he accepted the jury’s guilt verdict
    and had admitted his responsibility for Madden’s murder at the
    time of his arrest. His purpose in testifying was to tell the truth
    and to let the jury know “that I am remorseful for what I have
    done.” He described what he had done as “heinous,” and was
    “ashamed and humiliated” he had caused others pain. He had
    unsuccessfully asked his attorney if he could write to the
    Madden family or seek their forgiveness in court. He asked the
    jury to spare his life, and said the decision whether he went to
    death row was in God’s hands.
    (3) Character witnesses
    Pamela M. testified she did not visit Travis in jail for the
    first two years after his arrest for Madden’s murder because she
    could not face the reality of the charges against Travis. She was
    now closer than ever to Travis. D.S. had visited Travis in jail,
    and “he’s got . . . this glow,” and there was hope in his eyes. She
    loved Travis “[w]ith all [her] heart.”
    Two correctional officers testified regarding Travis’s
    behavior and activities in jail after his arrest for Madden’s
    murder. Santa Clara County Department of Corrections Officer
    Keith Forster had known Travis about two years and had
    supervised him in jail. Travis treated staff respectfully and
    followed the rules. Officer Forster was of the view that although
    “there are individuals [who] absolutely deserve the death
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    penalty,” here it would be “improper” because “there is definitely
    an opportunity to be used . . . to change lives,” and to “maybe
    just have one individual change through his testimony and
    experience . . . would be well worth it.”
    Correctional Officer Damewood testified that in late 1992,
    after Travis’s failed escape plan, Travis had been housed in the
    maximum security jail area where Officer Damewood worked.
    Travis was in this area for about three years. Officer Damewood
    selected Travis as a trustee, a position he held for about two
    years. His duties included cleaning and delivering paperwork
    and meals to inmates. Travis was responsible, easy to get along
    with, and did not misbehave or treat Officer Damewood
    disrespectfully. In his cell Travis was studious and quiet.
    (4) Expert witness testimony
    Reverend Charon, a certified alcohol and drug counselor,
    testified as an expert on the “identification of alcohol and drug-
    related problems and the recovery process.” Reverend Charon
    met Travis in jail in late 1992 or 1993 when Travis attended his
    Bible study. Travis was diligent in attending, and Reverend
    Charon and Travis eventually began to meet one on one.
    Although Travis initially did not consider himself an addict, he
    eventually began working with Reverend Charon on the “The
    Twelve Steps” AA program. It was difficult to advance in a
    recovery program in jail because of the limited resources, and
    Reverend Charon had seen few people reach Travis’s level of
    recovery.
    Reverend Charon described Travis as a quiet individual
    who benefitted others by sharing what he had learned in
    recovery. Reverend Charon believed that Travis was sincere
    when he said he was following in the footsteps of the Lord. He
    was of the view that Travis had “made peace with God, is trying
    32
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    to do it with everyone else, and that he is in genuine recovery.”
    Travis appeared “very remorseful, and was earnestly seeking a
    way, under the circumstances, that he could express . . . his
    regret, and also, if there was anything that was possible [for
    him] to make amends, recognizing that you can never really
    make full amends.”
    Sharon Lutman, a registered nurse and licensed marriage
    and family counselor, testified as an expert regarding the
    assessment of chemically dependent people. On March 26,
    1997, Lutman interviewed Travis for one and a half hours at the
    Santa Clara County main jail to assess him for the long-term
    effects of drug and alcohol use, and to evaluate whether he was
    in a state of recovery. The two did not discuss Madden’s murder.
    Travis said he had taken no mood-altering drugs since the
    fall of 1992. Travis was open and responsive, and did not
    hesitate to share his past use of drugs and alcohol, but had
    difficulty expressing his feelings.
    Lutman concluded Travis was a “Type Two” alcoholic, or a
    man who has an alcoholic father and who begins to use drugs
    and alcohol early in life. This type of alcoholism was passed
    from father to child, and so her opinion would not change if she
    were aware Travis’s mother did not drink or consume
    nonprescription drugs during her pregnancy with Travis.
    Failure to develop stress management coping skills and impulse
    control are indicative of Type Two alcoholism.
    As to Travis’s recovery from drugs and alcohol, Lutman
    observed that Travis was meeting with Reverend Charon,
    reading 12-step literature, and listening to “recovery oriented
    tapes.” Travis understood his alcoholism and addiction would
    require treatment for the rest of his life. He had attempted to
    learn new techniques for resolving conflict and anger with
    33
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    others, such as assessing his own responsibility for conflict and
    sharing his concerns with God and Reverend Charon, instead of
    “just act[ing] out” or suppressing his anger with alcohol and
    drugs. He had appeared sincere and the most emotional when
    discussing his desire to make amends to Madden’s family.
    Travis was interested in counseling other inmates with
    substance abuse problems, and in Lutman’s opinion, had
    learned enough about addiction and recovery to assist others.
    Travis was also interested in studying pharmacology to learn
    more about addiction.
    Dr. Timmen Cermak, a psychiatrist, testified as an expert
    in the field of addiction. Dr. Cermak had interviewed Travis five
    times between October 30, 1992, and March 15, 1997, including
    one telephone interview. Dr. Cermak had also interviewed
    Travis’s sister D.S., his mother Pamela, and Reverend Charon.
    He had reviewed various documents including Travis’s
    statement to police, the indictment, investigator reports
    regarding family members, several police reports, and letters to
    and from Travis.
    Dr. Cermak diagnosed Travis as chemically dependent in
    forced remission. When Travis’s chemical dependence had been
    active, it had “distorted his judgment pervasively.” Travis was
    also suffering from posttraumatic stress disorder as a result of
    his childhood neglect and abuse. He was not schizophrenic or
    manic-depressive, and did not have an antisocial personality
    disorder.
    Dr. Cermak had hired Dr. James Kurkjian, a clinical
    psychologist, to perform neuropsychological tests on Travis.
    Dr. Kurkjian also administered to Travis the Minnesota
    Multiphasic Personality Index, and intelligence quotient,
    Rorschach, and picture and sentence completion tests. Based on
    34
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    the test results, Dr. Cermak concluded there was no organic
    brain damage, “nothing that would limit [Travis’s] capacity.”
    Travis had average to below average intelligence, and was in the
    normal range. Nothing in these test results indicated to
    Dr. Cermak that additional psychological testing was necessary.
    Travis initially struck Dr. Cermak as “being immature,
    someone who had been very out of control, [a] chronically
    intoxicated adolescent who really had lost his moral compass . . .
    with very tragic results.” Travis spoke incessantly about
    religion, and it appeared “religion was playing a very rigid and
    containing role in his life.” Over the past four and a half years,
    Dr. Cermak had observed Travis begin to recover from his
    chemical dependence, be less rigid in his religious beliefs, and
    become more emotionally available. There had been “a slow
    increase in his maturity, his ability to contain impulses, his
    ability to talk about his emotional life.” He had also received his
    General Education Diploma.
    In Dr. Cermak’s view, Travis had held a “highly distorted
    view of the injustices in his life.” Travis felt shame as a result
    of his January 24, 1991 fight because he lost face before his
    friends, and was left with a facial injury that he believed would
    prevent him from ever again being “attractive to a woman.”
    Travis believed that “someone had to pay.” The murder was “a
    fatal act of attacking someone else in order to save himself and
    to . . . get away from the sense of inadequacy, failure[,] . . .
    shame, humiliation, . . . that sense of abject embarrassment
    that he . . . harbored within himself.” By murdering Madden,
    Travis was “defending his honor, defending his sense of
    vulnerability . . . [and] reestablishing the sense of self that is
    less shamed, humiliated, vulnerable and inadequate.”
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    PEOPLE v. SILVERIA and TRAVIS
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    Dr. Cermak was of the view that Travis’s personality was
    largely formed in an atmosphere of sufficient parental neglect
    and family member abuse that it affected his development.
    Travis’s chemical dependency allowed him to avoid feelings of
    shame and tension he experienced in his family. Individuals
    who ignore feelings of shame develop an increased sensitivity to
    that emotion and become less capable of “tolerating even small
    slights.”
    Methamphetamine was “commonly associated with
    violent behavior.” “Paranoid delusions are almost a routine
    aspect of chronic” methamphetamine use. Although in general
    paranoia from methamphetamine use could contribute to the
    explosiveness of an event for a person who already felt shame
    and rage, here Dr. Cermak understood Travis and the other
    perpetrators had largely exhausted their methamphetamine
    supply four days before the murder.
    Travis told Dr. Cermak that during the murder, “there
    was a buildup of fear and excitement and a sense of panic.”
    When the murder took longer than expected, and Travis began
    to stab Madden, he felt a “sense of relief from the fear and the
    panic and the excitement.” Travis said this “wasn’t really
    pleasurable and yet it was a sense of relief.” Dr. Cermak asked,
    “[I]s that . . . a positive feeling, maybe even a pleasurable
    feeling?” Travis replied, “Yes, that was a pleasurable feeling.”
    Shortly thereafter, while still at the murder scene, Travis began
    to feel a sense of emptiness. Dr. Cermak acknowledged that
    Travis may have made these statements to try to lessen the
    damage of Travis’s statement to Tex Watson that he had
    “enjoyed every moment” of the stabbing. In Dr. Cermak’s view,
    when Travis spoke of enjoyment in the letter, “he was trying to
    36
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    explain, make sense of the sense of relief that he felt following
    that murder.”
    3. Prosecution rebuttal
    Santa Clara County Sheriff’s Sergeant David Tomlinson
    testified that before February 1994, Silveria had claimed on a
    jail grievance form that he feared retaliation by an inmate and
    had successfully asked to be moved. Silveria and Travis were
    both housed in the “Third East Max” tier of the jail between
    September 21, 1993, and August 5, 1994. In February 1994,
    Silveria stated on a different grievance form that he had lied in
    his previous request to be rehoused and wanted to return to his
    former (less restrictive) housing assignment. Silveria said he
    had been “dishonest . . . in order [to] get next to my
    codefendant.”
    Sergeant Tomlinson also testified that simply because an
    inmate was a trustee did not mean he was trustworthy because
    the position varied widely in terms of the scope of
    responsibilities and freedom.
    Cynthia Tipton testified that on the morning of January
    28, 1991 (the day of Madden’s murder), Silveria came to her
    home and asked to shower because he had contracted poison
    oak. He appeared uncomfortable because of the poison oak, but
    not otherwise ill or recovering from a recent illness. Nor did he
    tell Tipton he had recently been ill. After his shower, Tipton
    told Silveria she knew “you guys are doing the stun gun
    robberies.” Silveria replied, “[T]hey don’t know who we are and
    they don’t know what we look like,” and said that Tipton should
    not worry. He also told Tipton “they had something big that
    they were going to be doing that night.” Silveria showed no
    reluctance to participate in this event, but appeared to be “in a
    37
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    really good mood,” and “looking forward to what was . . . going
    on for the rest of his day.”
    II. DISCUSSION
    A. Guilt Phase Issues6
    1. Motion to Suppress
    Travis contends the trial court erred in denying his motion
    to suppress. In particular he contends the police lacked
    reasonable suspicion to detain him, his arrest lacked probable
    cause, and the warrantless search of his vehicle was improper.
    We disagree.
    “In reviewing a trial court’s ruling on a motion to suppress
    evidence, we defer to that court’s factual findings, express or
    implied, if they are supported by substantial evidence.
    [Citation.]    We exercise our independent judgment in
    determining whether, on the facts presented, the search or
    seizure was reasonable under the Fourth Amendment.” (People
    v. Lenart (2004) 
    32 Cal.4th 1107
    , 1119.)
    a. Factual background
    On January 25, 1991, San Jose Police Detective John
    Boyles caused the Quik Stop Market robbery video to be
    screened at a police briefing. A fellow officer told Detective
    6
    “[A]s to many claims defendants allege for the first time
    that the error complained of violated their federal constitutional
    rights. To the extent that in doing so defendants have raised
    only a new constitutional ‘gloss’ on claims preserved below, that
    new aspect of the claims is not forfeited. However, ‘[n]o separate
    constitutional discussion is required, or provided, when
    rejection of a claim on the merits necessarily leads to rejection
    of [the] constitutional theory . . . .’ ” (People v. Bryant, Smith
    and Wheeler (2014) 
    60 Cal.4th 335
    , 364 (Bryant, Smith and
    Wheeler).
    38
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Boyles that he recognized one of the perpetrators on the video
    as Troy Chapple and gave him Chapple’s date of birth. Santa
    Clara County juvenile probation department records indicated
    that Troy Chapple was also known as Troy Rackley. Detective
    Boyles located a photograph of Rackley in the San Jose Police
    photo base, and observed Rackley appeared to be one of the
    perpetrators on the video.
    On January 28, Detective Boyles contacted a juvenile
    probation officer, who identified Matthew Jennings as a second
    perpetrator on the videotape, and gave Jennings’s home address
    to Detective Boyles. About 5:00 p.m. that day an unidentified
    female informant spoke to Detective Boyles on the telephone
    and said that “Danny, John, Matt, and Chris” were perpetrators
    of the stun gun robberies, and that “Troy” also associated with
    that group.       Officer Boyles requested San Jose police
    communications dispatch a “Be on the Lookout” notice to all
    police units for Troy Rackley, Matthew Jennings, and “anybody
    associated with them with the names John, Chris, and . . .
    Daniel.” He also shared the information on the stun gun
    robberies — including photographs of Jennings and Rackley,
    and a still shot photograph from the robbery videotape of a
    person later identified as Silveria — with San Jose Police Officer
    Brian Hyland.
    That evening after Detective Boyles had gone home, San
    Jose Police Sergeant George McCall spoke with a female
    informant who said that the person involved in the stun gun
    robberies known as “Danny” had a last name of “Silveras” or
    “Silveria.” The informant also said the robbery suspects were
    going to “pull another robbery that night” and would then be
    “leaving town,” and might be driving a red and black Charger.
    39
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Sergeant McCall passed this information on that evening to
    Officer Hyland and at some point to Detective Boyles.
    About 9:00 p.m. that night, Detective Boyles spoke with a
    woman who sounded like the informant to whom he had
    previously spoken. Detective Boyles also recalled that he asked
    the woman if she was the same person to whom he had
    previously spoken and she said yes. She identified herself as
    “Cynthia.” Cynthia said she now had the last name of “Silveria”
    for “Danny,” and “Jennings” for Matthew, and also gave him a
    home address for Jennings that matched the street and
    apartment number of the address Detective Boyles had received
    for Jennings from the juvenile probation officer. Detective
    Boyles requested that this additional information also be
    broadcast to the police patrol units.
    On the evening of January 28, after speaking to Sergeant
    McCall, Officer Hyland visited the homes of Jennings, Spencer,
    and Silveria. Jennings’s older brother told Officer Hyland that
    Jennings had packed a suitcase and left in a black and white
    Dodge Charger with two men named Christopher Spencer and
    John Travis, as well as Silveria and Rackley. A computer check
    revealed Travis had an outstanding misdemeanor warrant.
    Spencer’s father told Officer Hyland that Silveria, Travis, and
    Rackley were friends of Spencer, and allowed him to search
    Spencer’s room. There Officer Hyland found a citation with a
    Charger’s license plate number. Silveria’s brother likewise told
    the officer that Silveria had packed a suitcase, said he was going
    to live in the mountains, and left with Travis, Spencer, Rackley,
    and Jennings. Officer Hyland spoke with about seven total
    individuals, each of whom said Silveria, Travis, Jennings, and
    Rackley had been together for at least one day and were all
    planning to flee the San Jose area. Officer Hyland told everyone
    40
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    to whom he spoke to call him or 911 if they saw Silveria, Travis,
    Rackley, Jennings, or Spencer.
    On January 29 at 6:46 p.m., San Jose Police Department
    call intaker Joanne Schlachter received a 911 call from a man
    who asked to speak to Officer Hyland. Schlachter said the
    officer was not available, and asked if she could help. The caller
    said that the “guys . . . doing the robberies of the mini-marts
    with the taser guns” were at the San Jose Oakridge Mall arcade.
    He also said that one of the men, “Troy,” was 18 or 19 years old,
    and a second man “Matt” was wearing a white shirt and black
    pants. The informant gave his name and appears to have given
    his phone number and a description of what he, the informant,
    was wearing. Schlachter sent the information to a police
    channel that routed it to the appropriate officers. Officer
    Hyland received the dispatch and recognized the informant as
    someone to whom he had spoken the day before. Oakridge Mall
    security was also alerted, and a security guard began to follow
    the suspects through the mall. The informant called again at
    6:58 p.m., and told a different intake person that Troy was
    wearing green pants and black tennis shoes, and one of the two
    suspects was now “in Shirtique’s” and was carrying a large sum
    of money. The other suspect was somewhere in the mall and
    “they [were] getting ready to go to Sacramento.”
    Dana Withers testified that on January 29 he was working
    as an Oakridge Mall security guard. He received information
    that caused him to follow two White men — who were joined by
    a third White man — through the mall to two silver vehicles, a
    Datsun 280ZX and a Honda Civic. The men entered the vehicles
    and a second security guard, Michael Graber, who was driving
    outside the mall, continued the surveillance and communicated
    41
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    with the San Jose police dispatch. The suspects drove from the
    west to the north side of the mall where they were stopped.
    On January 29, 1991, about 6:46 p.m., San Jose Police
    Sergeant Jean Edward Sellman received a radio dispatch to go
    to the Oakridge Mall arcade and look for two suspects in the
    stun gun robberies who were described in the dispatch.
    Sergeant Sellman did not see anyone matching the suspects’
    description in the arcade, but learned that a mall security guard
    was following the suspects through the mall. He subsequently
    received a dispatch that the suspects were entering a silver
    Honda and a silver either 240 or 280ZX Datsun in the north
    parking lot. Sergeant Sellman returned to his police car, which
    was also in the north lot, saw two cars matching the dispatched
    description, and noticed that the Honda Civic was closely
    following the Datsun. A second officer, Sergeant Kurt Brandt,
    blocked the row in front of the suspects’ vehicles with his vehicle,
    and Sergeant Sellman blocked them with his vehicle from
    behind. Silveria was driving the Honda Civic. Travis was
    driving the Datsun, and Rackley was his passenger.
    San Jose Police Officer James Werkema arrived at the
    scene, and was told by another officer that Travis was the driver
    of the Datsun. Officer Werkema had previously been told by
    Officer Hyland that Travis had an outstanding misdemeanor
    warrant and that Rackley had been positively identified as a
    perpetrator by one of the robbery victims. Officer Hyland
    arrived and observed that while Travis was detained in the
    parking lot, a warrant check was run and his misdemeanor
    warrant was confirmed. Rackley and Silveria were arrested for
    robbery and Travis was arrested for robbery and on an
    outstanding misdemeanor warrant.
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Officer Werkema searched the Datsun 280ZX incident to
    the arrests of both Travis and Rackley. In the Datsun’s backseat
    area he found two fanny packs, one that contained rolled coins
    and another that contained $1,313 and a motor vehicle purchase
    order made out to John Travis and Danny Silveria. In the rear
    of the vehicle he found a duffle bag containing two battery
    packets bearing a LeeWards price sticker. Sergeant Sellman
    searched Silveria’s car and found a PARALI/AZER stun gun and
    a fanny pack containing $587. Both cars were impounded.
    b. Analysis
    (1) Reasonable suspicion to detain
    Travis contends that the police lacked reasonable
    suspicion to stop his vehicle and detain him. We reject the
    claim.
    Travis asserts that the record fails to demonstrate how the
    security guard correctly identified robbery suspects “Troy” and
    “Matt” in the mall and followed them to their vehicles. Travis
    did not challenge the stop of his vehicle in the trial court, and
    the claim is therefore forfeited.
    “[W]hen defendants move to suppress evidence under
    section 1538.5, they must inform the prosecution and the court
    of the specific basis for their motion.” (People v. Williams (1999)
    
    20 Cal.4th 119
    , 129.) Here, Travis’s suppression motion and his
    argument on that motion challenged the legitimacy of the search
    incident to his arrest on a traffic warrant, his lack of opportunity
    to post bail after his arrest on the warrant, and the sufficiency
    43
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    of his Miranda advisement.7 None of these claims informed the
    prosecution of the need to adduce greater detail as to how the
    robbery suspects were identified in the mall and followed to
    their vehicles.8 The suppression hearing, which concerned the
    suppression motions of four then codefendants, spanned nine
    days and consumes much of the first nine volumes of the
    reporter’s transcript. Had Travis asserted below that his
    detention lacked reasonable suspicion because of the absence of
    evidence of how the security guard initially identified the
    suspects in the mall, the prosecutor would have been on notice
    to adduce additional testimony more fully describing this event.
    (See Williams, at p. 130 [“if defendants detect a critical gap in
    the prosecution’s proof or a flaw in its legal analysis, they must
    object on that basis to admission of the evidence or risk forfeiting
    the issue on appeal”].)
    The claim is also meritless. “[T]he Fourth Amendment
    permits an officer to initiate a brief investigative traffic stop
    when he has ‘a particularized and objective basis for suspecting
    the particular person stopped of criminal activity.’ [Citations.]
    ‘Although a mere “hunch” does not create reasonable suspicion,
    the level of suspicion the standard requires is considerably less
    than proof of wrongdoing by a preponderance of the evidence,
    and obviously less than is necessary for probable cause.’
    7
    Travis also contended that the search of his car was
    “beyond the scope of [his] consent, and/or said consent was
    unlawful and/or withdrawn.” His supporting memorandum
    does not discuss this claim, which appears to arise from events
    after his vehicle was impounded.
    8
    Although Silveria challenged his arrest, his counsel
    expressly stated that he had “no quarrel with anything Officer
    Sellman did” before the arrest including his stop of the vehicles.
    44
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    [Citations.] [¶] Because it is a ‘less demanding’ standard,
    ‘reasonable suspicion can be established with information that
    is different in quantity or content than that required to establish
    probable cause.’ [Citation.] The standard ‘depends on the
    factual and practical considerations of everyday life on which
    reasonable and prudent men, not legal technicians, act.’
    [Citation.]     Courts ‘cannot reasonably demand scientific
    certainty . . . where none exists.’ [Citation.] Rather, they must
    permit officers to make ‘commonsense judgments and inferences
    about human behavior.’ ” (Kansas v. Glover (2020) __ U.S. __,
    __ [
    140 S.Ct. 1183
    , 1187–1188].)
    Here, a person to whom Officer Hyland had spoken in
    person the day before called 911, identified himself, and said
    that the stun gun robbery suspects, including “Matt” and “Troy,”
    were at a specific location within the Oakridge Mall. Critically,
    at the time Officer Hyland received the dispatch about this call,
    he already had probable cause to arrest Jennings and Rackley
    for the Quik Stop Market stun gun robbery because both of these
    men had been positively identified as perpetrators. Thus, unlike
    cases such as Navarette v. California (2014) 
    572 U.S. 393
    (Navarette), in which the reliability of the informant’s 911 report
    that a crime had occurred was in question, here Officer Hyland
    knew the stun gun robberies had occurred and also knew the
    names of at least two persons who had been identified as
    perpetrators in one of the crimes and implicated in the other.
    He also had the names of three other men who were alleged to
    be involved in the robberies. (Compare Navarette, at p. 404
    [“Under the totality of the circumstances, we find the indicia of
    reliability in this case sufficient to provide the officer with
    reasonable suspicion that the driver of the reported vehicle had
    run another vehicle off the road,” making it reasonable “for the
    45
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    officer to execute a traffic stop”].) The only question here was
    whether the informant was correctly reporting the location of
    these individuals.
    Moreover, “a caller’s personal knowledge,” shown here by
    the informant’s knowledge of the suspects’ names, current
    location, and apparel, “ ‘lends significant support to the tip’s
    reliability.’ ” (People v. Brown (2015) 
    61 Cal.4th 968
    , 981,
    quoting Navarette, supra, 572 U.S. at p. 399.) “[T]he caller’s
    report was contemporaneous, a factor that ‘has long been
    treated as especially reliable.’ ” (Ibid.) In addition, the caller
    identified himself and appears to have given his phone number
    and described what he was wearing, circumstances that
    enhanced his credibility. (Id., at p. 982 [“private citizens who
    report criminal activity generally have no bias or motive other
    than good citizenship, and therefore tend to be reliable”].) His
    “use of the 911 emergency system” is a further “indicator of
    veracity” because the recording and tracing features of that
    system “provide some safeguards against making false reports
    with immunity.” (Navarette, at p. 400; see Brown, at p. 982.)
    Based on the informant’s report, a security guard was able to
    locate the suspects and follow them to their vehicles, which were
    then described to police and broadcast to responding officers.
    Sergeant Sellman observed two vehicles matching this
    description, and further observed that one vehicle was closely
    following the other, and assisted Officer Brandt in stopping the
    vehicles. “An officer may arrest or detain a suspect ‘based on
    information received through “official channels.” ’ ” (Brown, at
    p. 983.) The totality of these circumstances was sufficient to
    create a reasonable suspicion that the persons in the vehicles
    were stun gun robbery suspects and to detain them.
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    (2) Probable cause to arrest
    Travis contends that there was no probable cause to arrest
    him other than on a misdemeanor warrant. However, the
    outstanding misdemeanor warrant was a sufficient basis for
    Travis’s arrest. (§ 836, subd. (a) [“A peace officer may arrest a
    person in obedience to a warrant . . . .”]; Utah v. Strieff (2016) __
    U.S. __, __ [
    136 S.Ct. 2056
    , 2062] [once the officer discovered the
    arrest warrant, he had an obligation to arrest the defendant].)
    Moreover, probable cause existed to arrest Travis for the
    stun gun robberies. (Maryland v. Pringle (2003) 
    540 U.S. 366
    ,
    370 [“A warrantless arrest of an individual in a public place for
    a felony . . . is consistent with the Fourth Amendment if the
    arrest is supported by probable cause”].) “To determine whether
    an officer had probable cause to arrest an individual, we
    examine the events leading up to the arrest, and then decide
    ‘whether these historical facts, viewed from the standpoint of an
    objectively reasonable police officer, amount to’ probable cause.”
    (Id. at p. 371.) An arrest remains lawful under the Fourth
    Amendment even when the “criminal offense for which there is
    probable cause to arrest” is different from the “offense stated by
    the arresting officer at the time of arrest.” (Davenpeck v. Alford
    (2004) 
    543 U.S. 146
    , 148, 153; see id. at p. 155 [“Those are
    lawfully arrested whom the facts known to the arresting officers
    give probable cause to arrest”].)
    Here, as noted, Officer Hyland had probable cause to
    arrest Troy Rackley for the Quik Stop Market stun gun robbery
    because he had been positively identified as a perpetrator by the
    victim. Moreover, we have previously concluded based on the
    same evidentiary hearing on which we rely here that informant
    Cynthia’s January 28 report to Detective Boyles — which
    included information that “Danny” Silveria, “John,” “Matt”
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Jennings, and “Chris” were perpetrators of the stun gun
    robberies, and that “Troy” also associated with that group —
    was reasonably corroborated.          (People v. Spencer (2018)
    
    5 Cal.5th 642
    , 664–666 (Spencer).) This information about the
    four alleged perpetrators was broadcast to all police units on
    January 28. In addition, on January 29, a different informant,
    whose identity was known to Officer Hyland, told 911 that stun
    gun robbery suspects, including “Troy,” were at the Oakridge
    Mall. This information, along with (1) the presence of Travis
    driving a car at the Oakridge Mall in which Troy Rackley was a
    passenger, and in which a large amount of cash in one fanny
    pack and rolled coins in a different fanny pack was found, and
    (2) the circumstance that Travis’s car was closely followed by a
    car driven by Silveria that was found to contain a stun gun, the
    weapon used in the January 24, 1991 robberies, would likely
    persuade an objectively reasonable police officer that Travis had
    committed the felony of robbery. (See Maryland v. Pringle,
    
    supra,
     540 U.S. at pp. 371–372 [given that the defendant was
    one of three men riding in a car in the early morning, $763 of
    rolled-up cash was in the glove compartment directly in front of
    the defendant, and baggies of cocaine were behind the backseat
    armrest and accessible to all three men, and none of the three
    men offered any ownership information with respect to the
    cocaine or money, it was “an entirely reasonable inference from
    these facts that any or all three of the occupants had knowledge
    of, and exercised dominion and control over, the cocaine,” and
    thus “a reasonable officer could conclude that there was
    48
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    probable cause to believe [the defendant] committed the crime
    of possession of cocaine, either solely or jointly”].)9
    (3) Search of Travis’s vehicle
    Travis asserts that the warrantless search of his vehicle was
    controlled by Arizona v. Gant (2009) 
    556 U.S. 332
    , and was not
    justified under that standard. We disagree.
    At the time of Travis’s 1991 arrest, prevailing United
    States Supreme Court law held that “when a policeman has
    made a lawful custodial arrest of the occupant of an automobile,
    he may, as a contemporaneous incident of that arrest, search the
    passenger compartment of that automobile” and any closed
    containers found within that space. (New York v. Belton (1981)
    
    453 U.S. 454
    , 455, 460–461.) Travis does not argue that the
    search of his vehicle was invalid under Belton. Rather, he
    asserts this case is controlled by Arizona v. Gant, 
    supra,
    556 U.S. at pages 343, 351, in which the high court revisited
    Belton, and held that a warrantless search incident to the lawful
    arrest of a recent occupant is justified only (1) “when the
    arrestee is unsecured and within reaching distance of the
    passenger compartment at the time of the search,” or (2) “when
    it is ‘reasonable to believe evidence relevant to the crime of
    arrest might be found in the vehicle.’ ” The 1991 search here
    was after Belton and before Gant. “[S]earches conducted in
    9
    Because we conclude there was probable cause to arrest
    Travis for robbery, we need not address Travis’s argument that
    because there was no probable cause to arrest him for robbery,
    and he was not provided an opportunity to post bail on his arrest
    for the misdemeanor traffic warrant, his subsequent statements
    to police should have been suppressed.
    49
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    objectively reasonable reliance on binding appellate precedent
    are not subject to the exclusionary rule.” (Davis v. United States
    (2011) 
    564 U.S. 229
    , 232; see 
    id.
     at pp. 239–240 [searches
    conducted after Belton and before Gant, and in compliance with
    Belton, are not subject to the exclusionary rule].)
    In sum, the trial court properly denied the motion to
    suppress.
    2. Asserted Denial of Hardship Request
    Travis contends that the trial court erroneously denied
    Alternate Juror No. 1’s hardship request. We reject the claim.
    After Travis’s jury and alternate jurors were sworn, and
    before opening statements, two jurors, including Juror No. 6,
    were discharged, and Travis and the prosecutor stipulated to
    reopen jury selection to choose two additional alternates.10
    Travis’s remaining jury was called to the courtroom, and the
    court explained these developments. The court then asked:
    “Everybody’s employer knows that you’re here eight months?
    Nobody is going to have a problem with that?” Juror No. 12
    asked what would happen if she were laid off during trial and
    described her work situation. At sidebar, the court gave counsel
    the opportunity to stipulate to her removal, which they declined.
    10
    We have held that the trial court lacks discretion to reopen
    jury selection after the jury has been sworn. (People v. Cottle
    (2006) 
    39 Cal.4th 246
    , 249.) No challenge is raised on appeal
    to this procedure. Rather Travis simply challenges the seating
    of Alternate Juror No. 1 for a discharged juror, a procedure
    that was consistent with that described by Penal Code
    section 1089 and Code of Civil Procedure sections 233 and 234.
    50
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    The court told Juror No. 12 her situation was too speculative to
    warrant her removal.
    Alternate Juror No. 1, an engineer, informed the court
    that his employer had determined the project on which he was
    working was “expected to take additional time and will require
    that I keep working on it” because there was insufficient time to
    train someone else. He observed “[e]ngineers usually work
    between 80 to 100 hours a week,” and that “during this time of
    the project . . . that means I will be working 50 hours outside of
    the courtroom, if there’s a concern for attentiveness on the time
    off in the courtroom based on that information.” In response to
    the court’s inquiry, he identified his company, and explained he
    would be working on Monday through Sunday from 6:00 p.m. to
    1:00 a.m. until the project was done. He was not asked how long
    the project was expected to last before completion.
    Travis did not request that the court ask Alternate Juror
    No. 1 further questions, or seek his removal. Shortly thereafter,
    Alternate Juror No. 1 was selected, without objection, to replace
    Juror No. 6.
    This claim is therefore forfeited on appeal. (People v.
    Rangel (2016) 
    62 Cal.4th 1192
    , 1212 (Rangel) [the defendant did
    not move for the juror’s discharge and the claim is therefore
    forfeited on appeal].) Although in response to the court’s inquiry
    Alternate Juror No. 1 described a development in his schedule,
    he did not request that he be discharged. Nor, although counsel
    had just met at sidebar regarding a different juror and had been
    offered the opportunity to stipulate to her removal, did Travis
    seek to have Alternate Juror No. 1 discharged after his new
    schedule was revealed, or object to the trial court later seating
    him in the place of Juror No. 6.
    51
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    3. Instructional Error
    Silveria contends the trial court erred in instructing the
    jury on first degree murder because the indictment, which
    charged him with murder in violation of section 187, only
    charged him with second degree murder. We have repeatedly
    rejected substantially similar claims, and Silveria cites no
    persuasive reason to revisit our conclusions. (People v. Ghobrial
    (2018) 
    5 Cal.5th 250
    , 284–285; People v. Contreras (2013) 
    58 Cal.4th 123
    , 147–148.) Nor, as Silveria further contends, was
    greater specificity in pleading required under Apprendi v. New
    Jersey (2000) 
    530 U.S. 466
    . (Ghobrial, at p. 285; Contreras, at
    pp. 148–149.)
    B. Penalty Retrial Issues
    1. Joint Penalty Retrial
    As noted, both penalty juries deadlocked, and defendants
    were retried before a single penalty jury. Defendants contend
    the trial court erroneously denied their severance motions
    seeking separate penalty retrials.11 We conclude there was no
    abuse of discretion in denying defendants’ severance motions,
    nor did any gross unfairness occur as a result of the joint penalty
    retrial.
    a. Factual background
    In support of their penalty retrial severance motions,
    defendants called two expert witnesses. Justice Charles
    Campbell, who sat as a visiting judge on the Texas trial and
    11
    Defendants also sought separate juries, and to the extent
    they raise that claim on appeal, we reject it for the same reasons
    we conclude that the trial court did not abuse its discretion in
    denying defendants’ motions for separate penalty retrials.
    52
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    intermediate appellate courts, and who had previously served
    as a justice on the Texas Court of Criminal Appeals and as a
    Texas prosecutor, testified as an expert on capital cases. Justice
    Campbell stated it was common Texas practice to try each
    defendant in a capital case separately. In his view severance
    was necessary for each defendant to receive the jury’s individual
    consideration, and either severance or separate juries “avoid[ed]
    the pitfalls” he had “noticed in the Supreme Court
    jurisprudence,” and were preferable to a limiting instruction to
    separately consider the defendants. Justice Campbell opined
    that if two defendants were equally culpable for a heinous crime,
    but one had heinous post-arrest “activity,” it would be more
    difficult for the jury to draw a distinction between the two
    defendants because the potential “spillover effect . . . is pretty
    great.”
    Charles Gessler, who had worked as a Los Angeles County
    deputy public defender for 31 years, testified as an expert on
    severance and on capital case defense tactics. He opined it was
    “more difficult for two defendants . . . joined together to get a
    fair and individualized determination by the jury than it is for
    an individual single defendant.” He was also of the view that “if
    the culpability is about equal in the crime,” and if the jury is
    “going to give death to one [defendant], it is very likely that they
    would then give death to the other [defendant] even if the
    aggravation and mitigation is different because the crime is the
    thing that they are most interested in.” When the mitigating
    evidence is similar, it “loses all individuality” and is viewed by
    the jury as a “standard defense ploy.” In his view, if two
    defendants remain friends in jail although one defendant
    misbehaves, jurors will view the continuing friendship as
    evidence that this misbehavior is condoned. Moreover, if both
    53
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    defendants have a religious conversion, and there is evidence of
    hypocrisy by one defendant, “it would take the other person
    down with him.” Gessler also believed it was difficult for some
    jurors to distinguish which mitigating and aggravating evidence
    applied to which defendant. In his view, no two capital
    defendants should be tried jointly before the same penalty jury,
    and the facts in this case “enhance the likelihood” of unfair jury
    verdicts.
    The trial court denied the severance motions, and noted in
    so doing that it had found unpersuasive the expert testimony.
    It stated: “The Court believes that it is capable of properly
    instructing the jury and is capable of ensuring a fair jury, who
    will follow the Court’s instructions, will be chosen. . . . [T]he
    Court believes that properly instructed jurors will give each
    defendant their individualized attention.”
    b. Analysis
    Section 1098 states in relevant part: “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 separate trials.” This section illustrates the
    Legislature’s “strong preference for joint trials,” including joint
    penalty phase trials. (People v. Wimbush (2017) 
    2 Cal.5th 402
    ,
    455; see id.at pp. 457–458; People v. Ervin (2000) 
    22 Cal.4th 48
    ,
    96 [penalty phase severance motion].) “Joint proceedings are
    not only permissible but are often preferable” when, as here, the
    “defendants’ criminal conduct arises out of a single chain of
    events. Joint trial may enable a jury ‘to arrive more reliably at
    its conclusions regarding the guilt or innocence of a particular
    defendant and to assign fairly the respective responsibilities of
    each defendant in the sentencing,’ ” and conserves judicial
    resources. (Kansas v. Carr (2016) 577 U.S. __, __ [
    136 S.Ct. 633
    ,
    54
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    645].) “We review a trial court’s denial of a severance motion for
    abuse of discretion based on the facts as they appeared at the
    time the court ruled on the motion.” (People v. Avila (2006)
    
    38 Cal.4th 491
    , 575.) “[E]ven if a trial court acted within its
    discretion in denying severance, ‘ “the reviewing court may
    nevertheless reverse a conviction where, because of the
    consolidation, a gross unfairness has occurred such as to deprive
    the defendant of a fair trial or due process of law.” ’ ” (People v.
    Thompson (2016) 
    1 Cal.5th 1043
    , 1079 (Thompson).)
    Silveria contends that section 1098 does not apply here
    because defendants were not “jointly charged” within the
    meaning of that section, but rather separate juries adjudicated
    their guilt and then deadlocked on penalty. There was one
    indictment jointly charging both defendants. The fact that
    separate juries adjudicated their guilt and deadlocked on
    penalty does not alter the fact that they remained jointly
    charged. “The use of dual juries is a permissible means to avoid
    the necessity for complete severance. The procedure facilitates
    the Legislature’s statutorily established preference for joint trial
    of defendants and offers an alternative to severance when
    evidence to be offered is not admissible against all defendants.
    (§ 1098; People v. Harris (1989) 
    47 Cal.3d 1047
    , 1075.)” (People
    v. Cummings (1993) 
    4 Cal.4th 1233
    , 1287; see § 190.4,
    subds. (b), (c), (e).) As the court stated in its pretrial ruling
    severing the trial of defendants from that of Spencer and
    Jennings: “By this ruling, the Court is not ordering four
    separate trials. The Court is hereby ordering two trials — two
    defendants in each trial. Each trial will have two separate juries
    and therefore, each defendant will have a separate jury.”
    Travis contends, based on the expert testimony at the
    severance motion hearing, that the trial court abused its
    55
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    discretion in denying his motion because the jury was unable to
    make an individualized sentencing determination regarding
    Travis and Silveria. We have recently rejected “similar
    empirical evidence,” concluding it does not “rebut the
    presumption that jurors are presumed to understand and accept
    the court’s instructions.” (People v. Erskine (2019) 
    7 Cal.5th 279
    , 301 (Erskine).) Moreover, Travis’s argument has been
    largely foreclosed by the high court’s 2016 conclusion that joint
    penalty trials do not violate the Eighth Amendment right to an
    individualized sentencing determination, and that limiting
    instructions such as those given here “ ‘often will suffice to cure
    any risk of prejudice.’ ” (Kansas v. Carr, 
    supra,
     577 U.S. at p. __
    [136 S.Ct. at p. 645].) Nor, in particular, did the circumstance
    that Travis and Silveria both relied on Reverend Charon to
    testify regarding their religious conversion preclude an
    individualized sentencing determination.           The fact that
    defendants were housed in the same county jail, and that jails
    may not employ numerous ministers, is one that would be easily
    understood by the jurors.
    Travis asserts that the trial court acknowledged the jury
    would not be capable of following its admonitions regarding
    severance because it had previously denied his motion to allow
    a former juror and former alternate juror from the first penalty
    phase to testify at the penalty retrial. He asserts that if the jury
    could not follow instructions regarding the testimony of a former
    juror and alternate juror, then it could not follow instructions to
    individually assess each defendant’s appropriate sentence. But
    Travis’s comparison of the severance issue to the issue regarding
    testimony by former jurors is inapt: As we observe below, the
    trial court was reasonably concerned testimony by the former
    juror and alternate risked confusing the penalty retrial jury as
    56
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    to its task, and opened the possibility that “the [prosecutor]
    could then call death voting jurors in rebuttal.” (Post, at
    pt. II.B.5.a.2.) Travis does not explain what admonition would
    alleviate these concerns.
    Nor did events at the joint penalty retrial cause such gross
    unfairness to defendants as to deprive them of a fair trial or due
    process of law. (Thompson, supra, 1 Cal.5th at p. 1079.)
    Silveria contends “there was a substantial risk that the single
    jury’s penalty determination against Travis could improperly
    influence its penalty decision regarding” Silveria. Silveria
    contends that such prejudice was demonstrated by evidence that
    Travis, unlike Silveria, stabbed Madden repeatedly, and by
    evidence introduced only against Travis, such as Travis’s plan
    to escape from jail, and his letter to a Manson family member
    describing how Travis “enjoyed every moment” of stabbing
    Madden.12
    “In Kansas v. Carr, 
    supra,
     577 U.S. at p. __ [136 S.Ct. at
    p. 644], the high court rejected a similar claim.[13] Carr involved
    two defendants who were brothers. (Id. at p. __ [136 S.Ct. at
    p. 637].) The older brother claimed he was prejudiced at their
    12
    Silveria also contends that the joint penalty retrial
    allowed the jury to consider evidence of Travis’s willingness to
    kill a jail guard during the planned escape, but we see no such
    testimony in the cited portion of the record. Rather, Travis
    replied, “No” when asked if there was “ever any plan to harm”
    the correctional guard for the area where the escape had been
    planned to occur, and that Travis only learned long after the
    escape plan had been thwarted that there had been a plan to
    harm the officer.
    13
    This discussion of Kansas v. Carr is drawn from our recent
    discussion of a similar claim in People v. Beck and Cruz (2019)
    
    8 Cal.5th 548
    , 600 (Beck and Cruz).
    57
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    joint penalty trial ‘by his brother’s portrayal of him as the
    corrupting older brother,’ and by his brother’s cross-
    examination of their sister, who equivocated about whether the
    older brother had admitted to her he was the shooter. (Id. at
    p. __ [136 S.Ct. at p. 644].) The younger brother claimed that
    ‘he was prejudiced by evidence associating him with his
    dangerous older brother, which caused the jury to perceive him
    as an incurable sociopath,’ and by the jury’s observation of his
    older brother in handcuffs. (Id. at p. __ [136 S.Ct. at p. 644; see
    
    id.
     at p. __ [136 S.Ct. at p. 644, fn. 4].)
    “The high court held that joint capital sentencing
    proceedings do not violate the Eighth Amendment right to an
    individualized sentencing determination. (Kansas v. Carr,
    
    supra,
     577 U.S. at p. __ [136 S.Ct. at p. 644].) Although the due
    process clause protects defendants against unduly prejudicial
    evidence that would render a trial fundamentally unfair, that
    standard was not met by the ‘mere admission of evidence that
    might not otherwise have been admitted in a severed
    proceeding.’ (Id. at p. __ [136 S.Ct. at pp. 644–645].) The high
    court observed that the trial court had instructed the jury that
    it must give ‘ “separate consideration to each defendant” ’ and
    that evidence admitted as to one defendant should not be
    considered as to the other defendant. (Id. at p. __ [136 S.Ct. at
    p. 645].) The high court presumed that the jury followed these
    instructions, while observing such limiting instructions ‘ “often
    will suffice to cure any risk of prejudice.” ’ (Ibid.) Moreover, the
    high court concluded that the penalty verdicts were not a result
    of the challenged penalty evidence against one brother or the
    other, but of the guilt phase evidence of ‘acts of almost
    inconceivable cruelty and depravity.’ (Id. at p. __ [136 S.Ct. at
    p. 646].)” (Beck and Cruz, supra, 8 Cal.5th at p. 600.)
    58
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Likewise here, the trial court instructed the jury during
    the prosecutor’s case-in-chief that evidence regarding Travis’s
    letter to Watson “is limited to Mr. Travis only.” At the end of
    the penalty phase, the court instructed the jury: “In this penalty
    trial of defendants Travis and Silveria, you must consider the
    penalty verdicts entirely separately for each of the two
    defendants. While you may consider the parts played by each of
    the two defendants in the murder and compare it to the part
    played by the other defendant, you absolutely may not
    determine a verdict for either of the defendants in terms of the
    verdict rendered to the other defendant. In other words, you
    may not allow your verdict as to one defendant to [a]ffect your
    verdict as to the other defendant. You must endeavor to reach
    separate verdicts as to each defendant in accordance with the
    aggravating and mitigating circumstances applicable to that
    defendant only, and in accordance with the rest of these
    instructions.” It further instructed the jury as to evidence of
    Travis’s escape preparations that “[u]nder no circumstances
    may you discuss or consider this evidence in any way as to Mr.
    Silveria.” We presume it understood and followed these
    instructions.14 (People v. Hajek and Vo (2014) 
    58 Cal.4th 1144
    ,
    1178 (Hajek and Vo).)
    In sum, defendants fail to demonstrate that the trial court
    abused its discretion in denying defendants’ severance motions,
    or that gross unfairness occurred as a result of the joint penalty
    retrial.
    14
    Silveria further contends that the denial of his
    severance motion precluded him from introducing mitigating
    evidence in his statement to police. We address and reject that
    claim in part II.B.5.c.
    59
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    2. Excusals for Cause
    Silveria contends that the trial court wrongfully excused
    for cause Prospective Juror No. J-56 based on his death penalty
    views. Silveria and Travis contend that the trial court
    wrongfully excused for cause Prospective Juror Nos. E-45 and
    F-77 on this same basis. We reject the claim.
    A trial court should only dismiss a prospective juror for
    cause if the prospective juror’s views on the death penalty would
    “ ‘prevent or substantially impair’ ” that person from performing
    the duties of a juror. (People v. Caro (2019) 
    7 Cal.5th 463
    , 481.)
    We review the trial court’s sustaining of a challenge to a
    prospective juror based on views about the death penalty for
    substantial evidence. (Beck and Cruz, supra, 8 Cal.5th at
    p. 607; Caro, at p. 481.)
    We consider each of the challenged excusals under these
    standards.
    a. Prospective Juror No. J-56
    On his questionnaire, when asked if he had any “beliefs
    that would affect in some way [his] ability or willingness to serve
    as a juror in this case,” Prospective Juror No. J-56 answered,
    “Yes,” explaining, “I would have a difficult time saying that
    another human being should be put to death.” When asked if
    there was “anything about the nature of this case that would
    make it difficult or impossible for [him] to be a fair and impartial
    juror,” he answered, “Yes,” explaining, “I do not think that I
    could assign the death penalty to someone.” When asked his
    general feelings about the death penalty, he again answered: “I
    do not think that I could award the death penalty to someone.
    A person should not take another person’s life.” When asked
    under what circumstances he believed the death penalty was
    appropriate, he answered, “I cannot think of any circumstance
    60
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    that the death penalty is appropriate.” When asked if he felt
    “the death penalty should never be imposed for murder,” he
    answered, “No,” explaining, “There might be some combination
    that might lead me to believe that the death penalty is
    warranted. At the moment, I cannot think of one, and hope that
    I never do.” J-56 answered “Yes” when asked if he could follow
    instructions to consider “all of the circumstances surrounding
    the crime” and “concerning the defendant and his background”
    before deciding on the penalty, but when asked what he would
    “want to know about a defendant before deciding” on penalty, he
    answered, “This is hard to explain since I cannot see myself ever
    awarding the death penalty,” before giving examples of desired
    information. He answered “No” when asked if he could set aside
    his own personal feelings and follow the law, explaining: “[I]t
    would be hard to keep my feelings about sentencing another
    person to death from my final analysis (and yet follow[] the law
    as it was explained).” He answered “Yes” when asked if he had
    any home or work problems “that might interfere with [his]
    ability to concentrate during this trial,” noting in part “the
    expected stress of knowing that I am part of the decision process
    for awarding [the] death penalty.”
    Before voir dire, the trial court explained to the
    prospective jurors, including Prospective Juror No. J-56, that
    the defendants had been found guilty of a murder that was not
    necessarily premeditated and that two special circumstances
    had been found true. It also identified the two possible penalties
    and the factors that the jury could consider in determining
    which penalty to choose, defined mitigating and aggravating
    evidence, described the weighing process, and explained that “to
    return a judgment of death, each of you must be persuaded that
    the aggravating circumstances are so substantial in comparison
    61
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    with the mitigating circumstances that it warrants death
    instead of life without the possibility of parole.”15
    On voir dire, Prospective Juror No. J-56 stated he would
    keep an open mind, listen to all of the evidence, and would not
    automatically vote for either penalty. When discussing his
    questionnaire, J-56 reiterated that he did not believe “somebody
    should be able to take somebody else’s life.” He added, “I think
    I also mentioned in there that there might be a situation where
    I think a death penalty would be — or somebody’s life could be
    taken, but I can’t think of any offhand.” The court explained
    that under California law there was no presumption as to which
    penalty was appropriate and described the circumstances under
    which a juror could vote for the death penalty. It then asked, “If
    your personal beliefs or feelings were to be in conflict with the
    California law, do you think you’d be able to set aside your
    personal beliefs and feelings for this particular trial for this
    purpose, or do you think that’s something you couldn’t do?” J-
    56 replied, “I think it would be very hard for me to do.”
    In response to questioning by defense counsel, Prospective
    Juror No. J-56 explained that he could follow “the guidelines
    that the judge sets up for aggravated and mitigated . . . and
    come to a conclusion based on those. But even once I come to
    that conclusion, if it happens to be death, I would still have a
    hard time.” In response to further questioning he said he would
    be capable of voting for the death penalty, adding, “But, like I
    said, it would be very hard for me to then go through with it and
    to cause another person to die because of the result.” In
    response to questioning by the prosecutor, J-56 described
    15
    Similar opening instructions were given before the voir
    dire of Prospective Juror Nos. E-45 and F-77.
    62
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    himself as a “person who’s reluctant to award the death penalty
    even though he . . . might decide that the facts and the
    guidelines are met.”
    The prosecutor challenged Prospective Juror No. J-56 for
    cause and trial court sustained the challenge, stating that “the
    juror could not tell us that . . . he was willing to temporarily set
    aside his own personal views. It would be difficult, but he didn’t
    say he could do that and that is consistent with his answers in
    the questionnaire. . . [T]he Court finds that he is substantially
    impaired.”
    No error appears in excusing Prospective Juror No. J-56
    for cause. Although he expressed a willingness to consider all of
    the evidence, keep an open mind, and follow the instructions, he
    also expressed concern he would not be a fair and impartial juror
    because of his views on the death penalty, and observed that he
    would find it difficult to vote for the death penalty even if he
    determined it was the appropriate verdict.                  On his
    questionnaire, J-56 answered “No” when asked if he could set
    aside his own personal feelings and follow the law, explaining:
    “[I]t would be hard to keep my feelings about sentencing another
    person to death from my final analysis (and yet follow[] the law
    as it was explained).” On voir dire he was asked, “If your
    personal beliefs or feelings were to be in conflict with the
    California law, do you think you’d be able to set aside your
    personal beliefs and feelings for this particular trial for this
    purpose, or do you think that’s something you couldn’t do?” He
    replied, “I think it would be very hard for me to do.” He
    described himself as a “person who’s reluctant to award the
    death penalty even though he . . . might decide that the facts
    and the guidelines are met.” Substantial evidence supports the
    trial court’s finding that J-56’s ability to follow the law would be
    63
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    substantially impaired. (See People v. Wall (2017) 
    3 Cal.5th 1048
    , 1063 [upholding excusal of a prospective juror who
    “repeatedly expressed uncertainty not as to her own views on
    the death penalty or the appropriateness of the death penalty in
    any particular case, but as to her ability to impose a death
    sentence”]; People v. Duenas (2012) 
    55 Cal.4th 1
    , 12 [“Comments
    that a prospective juror would have a ‘hard time’ or find it ‘very
    difficult’ to vote for death reflect ‘a degree of equivocation’ that,
    considered ‘with the juror’s . . . demeanor, can justify a trial
    court’s conclusion . . . that the juror’s views would “ ‘prevent or
    substantially impair the performance of his duties as a
    juror . . . .’ ” ’ ”].)
    Moreover, the trial court was in a position, which we are
    not, to observe Prospective Juror No. J-56 as he gave his
    responses. (Uttecht v. Brown (2007) 
    551 U.S. 1
    , 9 [“Deference to
    the trial court is appropriate because it is in a position to assess
    the demeanor of the venire, and of the individuals who compose
    it, a factor of critical importance in assessing the attitude and
    qualifications of potential jurors”].) Although Silveria asserts
    no deference should be accorded because the court did not
    expressly state that it had granted the challenge for cause
    because of J-56’s observed demeanor, the court unquestionably
    weighed the prospective juror’s credibility and qualification to
    serve in its thorough voir dire questioning and in relying on that
    voir dire to sustain the challenge. (See People v. Flores (2020)
    
    9 Cal.5th 371
    , 388 (Flores) [“The trial court was in the best
    position to observe [prospective juror] S.M.’s demeanor, vocal
    inflection, and other cues not readily apparent on the record,
    and we reasonably infer that the trial court based its decision
    not only on what S.M. said, but also on how he said it”]; People v.
    Stewart (2004) 
    33 Cal.4th 425
    , 451 (Stewart) [“a trial judge who
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    observes and speaks with a prospective juror and hears that
    person’s responses (noting, among other things, the person’s
    tone of voice, apparent level of confidence, and demeanor),
    gleans valuable information that simply does not appear on the
    record”]; see also People v. Wilson (2008) 
    44 Cal.4th 758
    , 835
    (Wilson) [“In evaluating the testimony of the 12 jurors, the trial
    court necessarily had to assess their credibility”].)
    Substantial evidence supports the court’s ruling.
    b. Prospective Juror No. E-45
    On his questionnaire, in response to the question, “Is there
    anything about the nature of this case that would make it
    difficult or impossible for you to be a fair and impartial juror
    here,” Prospective Juror No. E-45 answered “Yes,” and wrote,
    “[M]y views on the death penalty.” When responding to a
    question about his “general feelings regarding the death
    penalty,” E-45 wrote, “I do not believe that the death penalty is
    a deterr[e]nt to murder. I am not sure if we have the right to
    take a life for a life.” He was “strongly against” the death
    penalty because he did not believe it “does anything to stop a
    crime and that being incarcerated for life is penalty enough.”
    When asked whether his views about the death penalty had
    changed substantially in the last few years, he answered, “Yes,”
    explaining, “I find myself thinking there ‘may’ be special cases
    where it should be considered.” He answered, “Yes” when asked
    if he adhered to “any religious or philosophical principle that
    would affect [his] ability to vote for the death penalty as a
    judgment in this case,” explaining, “I don’t believe ‘we’ should
    play God.” E-45 also answered, “Yes” when asked if he would
    always vote for life imprisonment without the possibility of
    parole and reject death, “regardless of the evidence presented”
    at the penalty retrial, explaining, “I don’t believe that the death
    65
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    penalty is the appropriate punishment.” When asked “[u]nder
    what circumstances, if any,” he believed “that the death penalty
    is appropriate,” he answered, “It would have to be for someone
    who is the epitome of evil.” When asked if he could see himself,
    “in the appropriate case . . . choosing the death penalty,” he
    answered, “No,” explaining, “I cannot at this time but if give[n]
    clear cases where it should be applied, I might be able to
    consider it.”
    On voir dire, the trial court asked Prospective Juror No. E-
    45, “[W]hen you initially went back there to deliberate, do you
    think you would be able to go back there with both penalties as
    possibilities?” E-45 replied, “Yes — well, I guess on the death
    penalty I have some issues with that, but I think I could look at
    what the law requires and — ” The court asked, “Would you
    automatically be closed off as to one penalty when you initially
    went back there?” E-45 replied, “It’s hard to say. Right now,
    yes, but I haven’t seen . . . the evidence, the circumstances.” The
    court said, “From reading your questionnaire, I gather that you
    do not favor the death penalty, necessarily?” E-45 answered,
    “Right.” The court asked: “You would have more favor toward
    life without parole. What we want to make sure of is that jurors
    are not closed off to either penalty, that they actually could
    conscientiously consider both penalties as possibilities, again,
    without knowing anything about the facts of the case.” E-
    45 said: “[P]robably the death penalty would be harder. I guess
    I would need to see more evidence than for the life in prison. So
    they’re not equally balanced.” The court subsequently asked:
    “Assume that the evidence in this case showed that the
    defendants had deliberately participated in the multiple
    stabbing of the victim in this case during the course of a robbery
    and the victim died. . . . [B]ased on that assumption: Do you
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    think that you would always vote for life without parole and
    reject the death penalty despite any aggravating evidence that
    may be presented during the course of the trial?” E-45 replied,
    “Yes, I think I would vote for life without parole, right.” The
    court asked, “Do you think you would ever vote for death based
    on that assumption?” E-45 said, “Probably not at this point, no.”
    The prosecutor challenged Prospective Juror No. E-45 for
    cause. The court continued voir dire, asking E-45, “Going back
    to that assumption, the multiple stabbing during a robbery, the
    victim died and so on. In a situation like that, could you even
    consider the death penalty?” E-45 replied: “Personally, no. But
    I guess if I were instructed as far as what the law should be,
    then I might have to look at . . . changing my beliefs a little bit.
    I guess I could consider the death penalty.” The court
    subsequently explained that California law “expresses no
    preference for either penalty. There is no presumption as to
    which penalty is appropriate in this case.” After further
    colloquy it asked, “[D]o you think that the death penalty could
    be appropriate in a case such as this, without knowing anything
    about the case, other than that one assumption?” E-45 replied,
    “I guess, just with that one assumption, probably not
    appropriate.” The court dismissed E-45, finding that he “is in
    fact substantially impaired because of his views on the death
    penalty and it would prevent him from fulfilling his role as a
    juror according to his oath and the instructions.”
    No error appears in excusing Prospective Juror No. E-45
    for cause. On his juror questionnaire he stated he was “strongly
    against” the death penalty, and that he would always vote for
    life imprisonment without the possibility of parole and reject
    death, “regardless of the evidence presented” at the penalty
    retrial. Although he believed the death penalty was appropriate
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    for “someone who is the epitome of evil,” he said on voir dire it
    was “probably not appropriate” for a stabbing death during a
    robbery. Moreover, “the mere theoretical possibility that a
    prospective juror might be able to reach a verdict of death in
    some case does not necessarily render the dismissal of the juror”
    erroneous. (People v. Martinez (2009) 
    47 Cal.4th 399
    , 432
    (Martinez.)
    Travis asserts that Prospective Juror No. E-45 did not
    “indicate he could never vote for” the death penalty.
    Nonetheless, E-45’s “answers provided substantial evidence
    that [he] could not fairly consider both sides.” (Thompson,
    supra, 1 Cal.5th at p. 1075.) On his juror questionnaire, when
    asked, “Is there anything about the nature of this case that
    would make it difficult or impossible for you to be a fair and
    impartial juror here,” E-45 answered “Yes,” and wrote, “[M]y
    views on the death penalty.” He answered “Yes” when asked if
    he adhered to “any religious or philosophical principle that
    would affect [his] ability to vote for the death penalty as a
    judgment in this case,” explaining, “I don’t believe ‘we’ should
    play God.” E-45 also answered “Yes” when asked if he would
    always vote for life imprisonment without the possibility of
    parole and reject death, “regardless of the evidence presented”
    at the penalty retrial, explaining, “I don’t believe that the death
    penalty is the appropriate punishment.”
    On voir dire, the court asked Prospective Juror No. E-45:
    “Assume that the evidence in this case showed that the
    defendants had deliberately participated in the multiple
    stabbing of the victim in this case during the course of a robbery
    and the victim died. . . . [B]ased on that assumption: Do you
    think that you would always vote for life without parole and
    reject the death penalty despite any aggravating evidence that
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    may be presented during the course of the trial?” (Italics added.)
    E-45 replied, “Yes, I think I would vote for life without parole,
    right.” The court asked, “Do you think you would ever vote for
    death based on that assumption?” E-45 said, “Probably not at
    this point, no.” The court subsequently asked, “[D]o you think
    that the death penalty could be appropriate in a case such as
    this, without knowing anything about the case, other than that
    one assumption?” E-45 replied, “I guess, just with that one
    assumption, probably not appropriate.”            This colloquy,
    particularly Juror E-45’s response that he would always vote for
    life without parole “despite any aggravating evidence that may
    be presented,” provides substantial evidence to support the trial
    court’s ruling.
    Moreover, “ ‘ “[t]here is no requirement that a prospective
    juror’s bias against the death penalty be proven with
    unmistakable clarity.” ’ ” (People v. Abilez (2007) 
    41 Cal.4th 472
    , 497.) As the high court has observed, many prospective
    jurors “simply cannot be asked enough questions to reach the
    point where their bias has been made ‘unmistakably clear’;
    these [prospective jurors] may not know how they will react
    when faced with imposing the death sentence, or may be unable
    to articulate, or may wish to hide their true feelings. Despite
    this lack of clarity in the printed record, however, 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.” (Wainwright v. Witt (1985)
    
    469 U.S. 412
    , 424–426, fn. omitted (Witt).)
    Substantial evidence supports the trial court’s ruling.
    69
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    c. Prospective Juror No. F-77
    On his questionnaire, when asked his general feelings
    about the death penalty, Prospective Juror No. F-77 answered,
    “Against it.” He answered “Yes” when asked if he held any
    “religious or philosophical principle that would affect [his]
    ability to vote for the death penalty as a judgment in this case,”
    explaining, “The involuntary taking of another’s life is wrong.”
    He answered “Yes” when asked if he had any beliefs that would
    affect his ability or willingness to be a juror, explaining: “I
    believe our [s]ociety might be better off without the Death
    Penalty. As a moral matter I do not see that the State has a
    right to take a life any more than an individual does. Some
    States have made mistakes. I doubt if the Death Penalty deters
    murder. I believe the existence of the Death Penalty gives a
    sanction to murder in [s]ociety.” He answered “No” when asked
    if he would always vote for life imprisonment “regardless of the
    evidence presented,” explaining, “I am open to the evidence.”
    When asked under what circumstances he believed the death
    penalty was appropriate, he answered: “Hard to come up with
    any. Death Penalty appears to be state-sanctioned murder.” He
    answered “Yes” when asked if he believed “the death penalty
    should never be imposed for murder.” He answered “No” when
    asked if he could see himself rejecting life imprisonment and
    choosing the death penalty, explaining, “Sitting here now I
    cannot see it but I would always listen to other people’s points-
    of-view.” He answered “Yes” when asked if he could set aside
    any preconceived notions about each penalty and his personal
    feelings and follow the law.
    On voir dire, in response to the court’s inquiry, Prospective
    Juror No. F-77 said he would try to keep an open mind regarding
    penalty until after he had heard all of the evidence, counsel’s
    70
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    arguments, and the instructions. After noting that F-77 had
    said he was against the death penalty, the court asked if he
    would be able to vote for that penalty if after hearing the
    evidence and engaging in deliberation he thought it was
    appropriate. F-77 replied: “I would want to keep an open mind
    and I would listen to arguments. If my opinion on the matter is
    wrong and I’m persuaded that it’s wrong, then I would change
    my opinion.” When asked if he were “closed off” to the death
    penalty, F-77 observed, “If somebody were to present me with
    an argument that I found overwhelming and persuasive, then
    my opinion would change.” He explained, “If I were persuaded
    by another person’s argument that my position was wrong, then
    I would change my position.” He identified Charles Manson,
    whom he described as “a monstrous person with no feelings of
    remorse,” as a person for whom the death penalty might be
    appropriate “if one was going to make an exception and say one
    should have the death penalty.” In response to the prosecutor’s
    inquiry, F-77 affirmed that he considered the death penalty to
    be state sanctioned murder. The prosecutor subsequently asked
    F-77, “[I]t sounds like you already have a position that you
    would have to be talked out of; is that fair?” He replied, “I would
    want to listen to all the evidence and I would want to listen to
    how that evidence had impacted other people and I would see
    whether my position was wrong.”
    The prosecutor challenged Prospective Juror No. F-77 for
    cause, and the trial court sustained the challenge, stating:
    “[T]he Court finds that the juror is substantially impaired. He
    has a position and his position is that he would have to be
    convinced otherwise. He is not here with an open mind. And
    the Court finds that his attitudes and answers and feelings
    would make it impossible or at least substantially impair him
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    from being a juror in this case and properly acting as a juror in
    accordance with the law and his oath.”
    Travis contends that “the trial court erroneously believed
    that an acknowledged aversion to the death penalty
    automatically disqualified” Prospective Juror No. F-77. As can
    be seen, the record is otherwise and supports the trial court’s
    finding that F-77 would not fairly consider both penalties.
    Although he answered “Yes” when asked on his questionnaire if
    he could set aside any preconceived notions about each penalty
    and his personal feelings and follow the law, and said on voir
    dire he would try to keep an open mind regarding penalty until
    after he had heard all of the evidence, counsels’ arguments, and
    the instructions, F-77 made other statements that provided
    substantial evidence to support the trial court’s ruling. On F-
    77’s questionnaire he answered “Yes” when asked if he believed
    “the death penalty should never be imposed for murder.” He
    also answered “Yes” when asked if he held any “religious or
    philosophical principle that would affect [his] ability to vote for
    the death penalty as a judgment in this case,” explaining, “The
    involuntary taking of another’s life is wrong.” He answered “No”
    when asked if he could see himself rejecting life imprisonment
    and choosing the death penalty, explaining, “Sitting here now I
    cannot see it but I would always listen to other people’s points-
    of-view.” On voir dire, F-77 described the death penalty as
    “state-sanctioned murder.” Although he said he would “keep an
    open mind,” he also indicated he already had an opinion on the
    issue of penalty. He would require an “overwhelming and
    persuasive” argument during jury deliberations to change his
    view, an attitude that belies the concept of keeping an open
    mind while listening to the evidence and entering deliberations.
    Although he identified Charles Manson as one person for whom
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    the death penalty might be appropriate, again “the mere
    theoretical possibility that a prospective juror might be able to
    reach a verdict of death in some case does not necessarily render
    the dismissal of the juror” erroneous. (Martinez, 
    supra,
    47 Cal.4th at p. 432.)
    Nor, as Travis further contends, does the circumstance
    that in cases such as People v. Ramirez (2006) 
    39 Cal.4th 398
    ,
    448–449, in which we upheld the trial court’s ruling retaining a
    prospective juror who favored the death penalty, but who “would
    not ‘necessarily be committed from the outset to the imposition
    of the death penalty’ ” (id. at p. 449), and who “assured the court
    multiple times that he would not automatically vote for the
    death penalty and would, instead, reach a decision based upon
    all of the evidence” (id. at p. 448), demonstrate that F-77 was a
    “suitable juror[].” Although the prospective juror in Ramirez
    initially said that “if the defendant were convicted of first degree
    murder and found to be eligible for the death penalty, he would
    vote to impose the death penalty unless he were convinced
    otherwise” (id. at p. 447), upon further examination the
    prospective juror “acknowledged that he would weigh and
    consider the evidence presented and base his decision on that
    evidence and would not vote ‘automatically’ for anything,”
    “denied that he would always vote to impose the death penalty
    for first degree murder ‘no matter what the circumstances that
    led to that conviction,’ ” and “stated that he would not
    ‘necessarily be committed from the outset to the imposition of
    the death penalty.’ ” (Ibid.) When asked by the trial court if the
    prospective juror found beyond a reasonable doubt a defendant
    guilty of first degree murder and found true a special
    circumstance allegation, “ ‘would that put you in a position
    where in every case would you always vote for the death
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    penalty,’ ” the prospective juror responded: “ ‘I don't think I
    could say in every case. I will have to judge each case by its own
    merits.’ ” (Ibid.) While there are some similarities between the
    statements in Ramirez and the statements at issue here, there
    are several crucial differences as well: Notably, unlike in
    Ramirez, Prospective Juror No. F-77, described the death
    penalty as “state-sanctioned murder,” and stated that he would
    require an “overwhelming and persuasive” argument during
    jury deliberations to change his view.
    d. Standard for assessing substantial impairment
    Silveria contends that the trial court erroneously used a
    different standard to assess whether Prospective Juror Nos. A-
    69, B-17, C-47, C-67, and G-68, who supported the death
    penalty, were substantially impaired, than for Prospective Juror
    Nos. J-56, E-45, and F-77, who opposed the death penalty. He
    claims for that reason the trial court’s rulings are entitled to no
    deference. We reject the claim.
    As a preliminary matter, we note that Silveria does not
    challenge the trial court’s rulings denying his challenges for
    cause against Prospective Juror Nos. A-69, B-17, C-47, C-67,
    and G-68. Hence these rulings are not before us. Although he
    attempts to do so in a footnote in his reply, “ ‘[i]t is axiomatic
    that arguments made for the first time in a reply brief will not
    be entertained because of the unfairness to the other party.’ ”
    (Rangel, supra, 62 Cal.4th at pp. 1218–1219.) Even assuming
    for the sake of argument that the claim was preserved, none of
    the challenged jurors served on the penalty retrial jury, hence
    Silveria fails to demonstrate prejudice from any erroneous
    denial of his challenges for cause. (People v. Bell (2019)
    
    7 Cal.5th 70
    , 94 (Bell) [“Where no challenged panelist actually
    74
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    served on defendant’s jury, ‘ “there is no basis for us to conclude
    that the jury empaneled was anything but impartial” ’ ”].)
    Silveria does, however, more broadly assert that the trial
    court used a different standard to assess whether five
    prospective jurors who supported the death penalty were
    substantially impaired than it did for three prospective jurors
    who opposed the death penalty. In making this claim, Silveria
    essentially contends that the trial court was biased in its death-
    qualification rulings. He does not point to any place in the
    record where he objected below on the ground of judicial bias to
    the manner in which the trial court conducted voir dire for these
    prospective jurors. Indeed, following the voir dire of Prospective
    Juror No. B-17, Silveria’s counsel expressly asserted that the
    trial court had been evenhanded in its application of the
    substantially impaired standard. Counsel also observed that
    earlier that day the court had excused on its own motion several
    prospective jurors who it had determined would automatically
    vote for the death penalty.
    Assuming the claim is preserved on appeal, it is meritless.
    “Witt has long been the law and it is clear the court was aware
    of the appropriate standard to apply.” (People v. Thomas (2011)
    
    52 Cal.4th 336
    , 361.) We have concluded, after careful review of
    the respective questionnaires and voir dire of Prospective Juror
    Nos. J-56, E-45, and F-77, that the trial court’s rulings
    sustaining the prosecutor’s challenges are supported by
    substantial evidence. (See ante, pt. II.B.2.a–c.) We have also
    reviewed the court’s voir dire of Prospective Juror Nos. A-69, B-
    17, C-47, C-67, and G-68, none of whom served on the penalty
    retrial jury, and see no indication that the court showed bias in
    evaluating whether these prospective jurors or Prospective
    Juror Nos. J-56, E-45, and F-77 were substantially impaired.
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Rather, as to each of these prospective jurors, the court
    conducted thorough voir dire examination to determine whether
    the prospective juror was qualified to serve and permitted
    counsel to ask further questions regarding possible
    disqualifying bias.
    Silveria asserts that Prospective Juror No. A-69 was more
    adamant in his view favoring the death penalty than “some”
    prospective jurors (presumably referring to Prospective Juror
    Nos. J-56, E-45, and F-77) were in their view opposing the death
    penalty, but the court denied the challenge for cause as to A-69
    because he said he could consider a life imprisonment penalty.
    Silveria asserts that the circumstance that the court sustained
    the challenge as to prospective jurors who opposed the death
    penalty, “even though they said they could consider the death
    penalty,” demonstrates the court’s bias against the defense.
    Silveria similarly claims that if Prospective Juror No. B-17 was
    not substantially impaired because he would not automatically
    vote for the death penalty, then Prospective Juror Nos. J-56, E-
    45, and F-77 who opposed the death penalty were not
    substantially impaired because they were not “automatically
    pro-life,” and that if Prospective Juror No. “C-47’s responses
    were sufficient to save him from exclusion . . . , then certainly
    the responses of the pro-life” Prospective Juror Nos. J-56, E-45,
    and F-77 “should have saved them as well.” As to Prospective
    Juror No. G-68, Silveria simply asserts that the trial court
    denied the defense challenge “because, although G-68 was
    biased in favor of the death penalty, he was not so biased in this
    case.”
    These summary assertions fail to consider the prospective
    jurors’ statements in the context of the entire voir dire.
    Prospective Juror No. A-69 said that although his mind was
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    leaning toward being closed off to the possibility of a verdict of
    life imprisonment “knowing that the defendants have been
    convicted of murder in the first degree and two special
    circumstances,” he would want to hear the mitigating evidence
    before reaching a penalty decision, and he could conscientiously
    consider and weigh that evidence. He also explained that his
    questionnaire opposition to the penalty of life imprisonment
    without the possibility of parole had been based on a
    misunderstanding that parole was available for such a sentence.
    Having learned otherwise during voir dire, A-69 said a verdict
    of life imprisonment was now “definitely” more possible.
    Prospective Juror No. B-17 said that he would “have to listen
    to . . . the testimony” and “make a judgment based on that,”
    agreed with the prosecutor he was “someone who would want to
    hear all the evidence in a case before rendering” a decision, could
    think of no reason why he could not be fair to both sides in the
    case, and said he had not provided an answer on the
    questionnaire regarding his reasons for supporting or opposing
    the death penalty because he had “no preference one way or the
    other.” Although he had answered “Yes” when asked on his
    questionnaire whether the death penalty should be mandatory
    for murder, he said on voir dire there could be extenuating
    circumstances that would make the death penalty inappropriate
    and that he would want to hear and could conscientiously
    consider the mitigating evidence before reaching a verdict.
    Prospective Juror No. C-47, who supported the death penalty,
    agreed with the court that he would be able to “keep an open
    mind” and “not make up [his] mind until [he had] heard all the
    evidence in court and the arguments from the attorneys and the
    instructions on the law and had a chance to go back and
    deliberate with [his] fellow jurors.” He also agreed with the
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    court that he would be able to “listen with an open mind to all
    the evidence that was presented” and “conscientiously consider
    both penalties as possibilities in this case at this point right now
    without knowing anything else.”
    By contrast, as delineated above, although Prospective
    Juror No. J-56 expressed a willingness to consider all of the
    evidence, keep an open mind, and follow the instructions, he also
    expressed concern he would not be a fair and impartial juror
    because of his views on the death penalty, and observed that he
    would find it difficult to vote for the death penalty even if he
    determined it was the appropriate verdict. Likewise, although
    he acknowledged there could be circumstances in which the
    death penalty would be appropriate, he was unable to articulate
    on his questionnaire or on voir dire what those might be. He
    also observed that the “stress” from knowing he would be
    participating in the decision whether to impose the death
    penalty would affect his ability to concentrate during the trial.
    Prospective Juror No. E-45 stated on his juror questionnaire
    that he was “strongly against” the death penalty, and that he
    would always vote for life imprisonment without the possibility
    of parole and reject death, “regardless of the evidence presented”
    at the penalty retrial. Although he believed the death penalty
    was appropriate for “someone who is the epitome of evil,” he said
    on voir dire it was “probably not appropriate” for a stabbing
    death during a robbery. Prospective Juror No. F-77 described
    the death penalty as “state-sanctioned murder,” and said he did
    not believe it should be imposed for murder. He would require
    an “overwhelming and persuasive” argument during jury
    deliberations to change his view, an attitude that is the
    antithesis of having an open mind while listening to the
    evidence and entering deliberations. Although he identified
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Charles Manson as one person for whom the death penalty
    might be appropriate, again “the mere theoretical possibility
    that a prospective juror might be able to reach a verdict of death
    in some case does not necessarily render the dismissal of the
    juror” erroneous. (Martinez, 
    supra,
     47 Cal.4th at p. 432.) And
    once again, many 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.”
    (Witt, supra, 469 U.S. at pp. 424–426.)
    Silveria asserts that the trial court should have recognized
    that Prospective Juror No. A-69’s credibility was suspect “when
    he claimed to have acquired a new understanding of the
    meaning of life without parole during voir dire” because the jury
    questionnaire described the sentence as “Life Without the
    Possibility of Parole.” “Making such credibility determinations
    fell squarely within the trial court’s province.” (Bryant, Smith
    and Wheeler, supra, 60 Cal.4th at p. 403; see ibid. [“The trial
    court’s view that Number 80 would not automatically vote in a
    particular way does not establish that the court applied an
    improper or even a different standard than with other
    prospective jurors”].)
    Silveria asserts that Prospective Juror No. C-67 never
    said “he could set aside his preconceived notions about the death
    penalty and follow the law,” yet the defense challenge for cause
    was denied. By contrast “the judge granted the prosecutor’s
    challenges for cause of three pro-life potential jurors even
    though they said they could put aside their preconceived notions
    about the death penalty.”
    79
    PEOPLE v. SILVERIA and TRAVIS
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    The United States Constitution “does not dictate a
    catechism for voir dire, but only that the defendant be afforded
    an impartial jury.” (Morgan v. Illinois (1992) 
    504 U.S. 719
    , 729,
    italics omitted.) Considering Prospective Juror No. C-67’s voir
    dire in its entirety, although he may not have said the precise
    statement that he could “set aside his preconceived notions
    about the death penalty and follow the law,” he said “Yes” when
    asked by the court if he would “be able to keep an open mind,”
    “not make up your mind until you’ve heard all the evidence from
    all the attorneys here in court, the arguments from the
    attorneys and the instructions on the law from the Court,” and
    go to the jury room for deliberations “with both penalties as
    possibilities.” Although he “lean[ed] in favor of the death
    penalty,” C-67 answered “Yes” when asked by the court if he
    would be able to listen to the mitigating “evidence with an open
    mind and be able to conscientiously consider and weigh that
    evidence in reaching a penalty phase determination.” C-67 also
    replied, “Yes,” when asked by the prosecutor, “Would you be
    willing, if you are selected as a member of this jury, to consider
    all of the evidence that comes into this courtroom, listen to it
    with an open mind, listen to the law the Court instructs on,
    listen to the arguments of counsel and then go back into the jury
    room, evaluate that evidence during the process of deliberation
    and arrive at a verdict as to the appropriate penalty even if
    that’s a difficult thing to do; could you do that?” When asked by
    the prosecutor, “Is there anything that would prevent you from
    being fair and impartial in this case?” C-67 replied, “I can’t
    think of anything.” Thus, contrary to Silveria’s assertion, the
    circumstance that C-67 did not expressly state that he could “set
    aside his preconceived notions about the death penalty and
    follow the law” fails to demonstrate that the trial court used a
    80
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    different standard to evaluate substantial impairment for C-67
    than it did for Prospective Juror Nos. J-56, E-45, and F-77.
    By contrast, as delineated above, Prospective Juror No. J-
    56 said, “[I]t would be very hard for me” when asked if he would
    be able to set aside “personal beliefs or feelings” that were “in
    conflict with the California law.” He also observed that he could
    follow “the guidelines that the judge sets up for aggravated and
    mitigated . . . and come to a conclusion based on those. But even
    once I come to that conclusion, if it happens to be death, I would
    still have a hard time.” Prospective Juror No. E-45 answered,
    “Probably not at this point, no,” when asked if he would ever
    vote for the death penalty in a case where “the defendants had
    deliberately participated in the multiple stabbing of the
    victim . . . during the course of a robbery and the victim died.”
    When asked if he could “even consider the death penalty” in that
    situation, E-45 replied: “Personally, no. But I guess if I were
    instructed as far as what the law should be, then I might have
    to look at . . . changing my beliefs a little bit. I guess I could
    consider the death penalty.”         Prospective Juror No. F-77
    described the death penalty as “state-sanctioned murder,” said
    he would require an “overwhelming and persuasive” argument
    during jury deliberations to change his view, and identified
    Charles Manson as one person for whom the death penalty
    might be appropriate.
    Silveria asserts the trial court’s rulings sustaining the
    prosecutor’s challenges for cause are not entitled to deference
    because the court did not expressly state that it had granted the
    challenges for cause to Prospective Juror Nos. J-56, E-45, and F-
    77 because of their observed demeanor. As discussed above, the
    court unquestionably weighed the prospective jurors’ credibility
    and qualification to serve in its thorough voir dire questioning
    81
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    and reliance on that voir dire to both sustain the challenges to
    Prospective Juror Nos. J-56, E-45, and F-77 and to reject
    Silveria’s challenges for cause to Prospective Juror Nos. A-69, B-
    17, C-47, C-67, and G-68. (See Flores, supra, 9 Cal.5th at p. 388
    [“The trial court was in the best position to observe [prospective
    juror] S.M.’s demeanor, vocal inflection, and other cues not
    readily apparent on the record, and we reasonably infer that the
    trial court based its decision not only on what S.M. said, but also
    on how he said it.”]; Stewart, 
    supra,
     33 Cal.4th at p. 451 [“a
    trial judge who       observes      and     speaks      with      a
    prospective juror and hears that person’s responses (noting,
    among other things, the person’s tone of voice, apparent level of
    confidence, and demeanor), gleans valuable information that
    simply does not appear on the record”]; see also Wilson, 
    supra,
    44 Cal.4th at p. 835 [“In evaluating the testimony of the
    12 jurors, the trial court necessarily had to assess their
    credibility”]; see ante, at pp. 64–65.)
    In sum, no judicial bias in evaluating whether Prospective
    Juror Nos. J-56, E-45, F-77, A-69, B-17, C-47, C-67, and G-68
    were substantially impaired is demonstrated.
    3. Removal of Juror No. 4
    Silveria and Travis contend the trial court erroneously
    removed Juror No. 4. We reject the claim.
    On her juror questionnaire, Juror No. 4 was asked if she
    knew or had heard of any anticipated witnesses appearing on a
    10−page list, including “Leo Charon.” She did not circle
    Reverend Charon’s name. On February 13, 1997, Juror No. 4
    told courtroom personnel during a recess that she now realized
    she knew Reverend Charon. After the rest of the jury had left
    for the day, and in a hearing with the court and counsel, Juror
    No. 4 explained that her husband had worked at CityTeam
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Ministries in the recovery program with Reverend Charon. She
    had known Reverend Charon for about 10 years and had
    socialized with him. She said, “I don’t know him intimately, but
    I just know he’s a good man,” adding “I didn’t know if that would
    have any effect on me.” Travis’s counsel mentioned that
    Reverend Charon had been gone from CityTeam for about four
    to five years, and Juror No. 4 said, “So has my husband.” The
    court asked, “Is there anything about your friendship or
    knowledge, your conversations or whatever with [Reverend]
    Charon that would affect your ability to be fair and impartial
    both to the prosecution and the defense in this case?” Juror
    No. 4 replied, “I don’t think so.” The court asked, “Would you be
    able to listen to Reverend Charon . . . with an open mind and if
    something he said seemed to ring true with you, fine, and if it
    didn’t, fine the other way?” Juror No. 4 replied, “Yes.” After
    consulting with counsel at sidebar, the court asked Juror No. 4,
    “Leo Charon was your husband’s boss you think?” She replied,
    “I know he works side-by-side. . . . My husband could have been
    his boss.” The court asked, “Is there anything about . . . your
    husband’s relationship with Leo Charon that would affect you
    in this case; do you think?” Juror No. 4 replied, “No.” The court
    thanked the juror and excused her until the next week.
    On February 20, in a hearing held outside the presence of
    the jury, the prosecutor noted that Reverend Charon had stated
    to separate juries at the first penalty phase that each of the
    defendants was the most sincere convert he had encountered.
    Recounting Juror No. 4’s statement that Reverend Charon was
    a good man, the prosecutor expressed concern that the juror had
    already formed an opinion as to his credibility. The prosecutor
    observed he was in the position of impugning the Reverend’s
    credibility in front of a juror who had known him for 10 years
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    and believed him to be a good person. “The People . . . find
    themselves with a juror who has a close connection to a critical
    witness [who] the People will have to attack.” The prosecutor
    also expressed concern that Juror No. 4 would be free to express
    her views regarding Reverend Charon during deliberations.
    On March 12, 1997, a second hearing was held with Juror
    No. 4 after the rest of the jury had left for the day. In response
    to the court’s question, she said she had seen Reverend Charon
    at a wedding a few months earlier. When asked if she was
    familiar with his personal life, she said she “thought he was a
    recovering alcoholic.” When asked what she meant by him being
    a “good man,” she explained the men at CityTeam seemed to be
    able to “talk to him and trust him.” The court asked Juror No. 4,
    “[A]ssume Mr. Charon testifies . . . favorably for the defense.
    Based on what you know of Mr. Charon, if you were the
    prosecution, would you feel comfortable with a juror such as
    yourself based on what you know?” Juror No. 4 replied, “Well,
    I would definitely have some concerns.” She explained:
    “Because I know him. What I know of him I just wouldn’t believe
    that he would ever lie about any dealings with somebody. So as
    far as that would go, I would believe that what he was saying he
    would believe to be true.” She answered, “Right,” when the
    court asked, “[I]f Mr. Charon testified under oath you would not
    believe that he would be capable of telling a lie or misleading
    anybody?” She later added, “I would tend to believe that what
    he’s saying he believes to be the truth. That doesn’t mean you
    can’t be wrong about something.” Juror No. 4 also said she could
    follow the court’s instruction not to disclose what she knew
    about Reverend Charon during deliberations. The court excused
    her for the day.
    84
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    The court granted the prosecutor’s motion to discharge
    Juror No. 4 for cause, stating: “The Court is convinced that
    there is absolutely no juror misconduct and Juror No. 4 did not
    realize she knew the witness, Mr. Charon, until February 13 of
    1997 during the opening statements and then she notified the
    Court immediately. It’s important to note that Mr. Charon’s
    testimony is unlike most witnesses in that it consists not only of
    his observations and conversations but more importantly his
    opinion and the credibility of that opinion. . . . . Juror No. 4 . . .
    would . . . be judging his credibility on facts or factors that are
    not in evidence and that would be improper in and of itself. Also,
    just as important she would not be able to get involved in the
    deliberative process on the issue of Mr. Charon’s credibility if
    and when that issue came up in deliberations. Juror No. 4 has
    stated . . . she does not believe that Mr. Charon would lie or even
    mislead anyone . . . . This shows that she has prejudged his
    testimony or opinion and could not look at it with an open mind.”
    “Section 1089 authorizes the trial court to discharge a
    juror at any time before or after the final submission of the case
    to the jury if, upon good cause, the juror is ‘found to be unable to
    perform his or her duty.’ ” (People v. Bennett (2009) 
    45 Cal.4th 577
    , 621.) A trial court’s decision to remove a juror is reviewed
    by “asking whether the grounds for such removal appear in the
    record as a demonstrable reality.” (People v. Thompson (2010)
    
    49 Cal.4th 79
    , 137.)
    Here Juror No. 4 stated that she had already formed a
    positive opinion of Reverend Charon’s credibility based on
    matters outside of the courtroom. The court asked Juror No. 4
    to assume Reverend Charon testified favorably for the defense,
    and inquired, “[I]f you were the prosecution, would you feel
    comfortable with a juror such as yourself based on what you
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    know?” She replied, “Well, I would definitely have some
    concerns,” explaining: “Because I know him. What I know of
    him I just wouldn’t believe that he would ever lie about any
    dealings with somebody. So as far as that would go, I would
    believe that what he was saying he would believe to be true.”
    She answered, “Right,” when the court asked, “[I]f Mr. Charon
    testified under oath you would not believe that he would be
    capable of telling a lie or misleading anybody.” Moreover, as the
    court recognized, she would not be permitted to engage in
    deliberations regarding his credibility or fully function as a juror
    if this issue arose during deliberations. For these reasons, the
    trial court had good cause to discharge Juror No. 4.
    4. Challenged Admitted Evidence
    a. Silveria’s former testimony
    Travis contends that the trial court erroneously admitted
    Silveria’s first penalty phase testimony regarding the
    circumstances of Madden’s murder at the joint penalty retrial.
    We conclude there was no error.
    As noted, at the first penalty phase, Travis and Silveria
    had separate juries. As pertinent here, the trial court ruled that
    if Silveria or Travis testified, they would testify before both
    juries when discussing the circumstances of the crime. Silveria
    testified before both penalty juries regarding the circumstances
    of the capital crime, and was subject to cross-examination by
    Travis. Neither jury reached a penalty verdict. At the joint
    penalty phase retrial, Silveria chose not to testify, and the
    prosecutor introduced the portion of Silveria’s prior testimony
    recounting the circumstances of the crime.
    Travis contends that when there are penalty
    codefendants, “testimony given by a defendant at a [penalty]
    86
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    trial that ends in a hung jury should not be available for use by
    the prosecution in its case-in-chief” against the codefendant at
    the penalty retrial. Evidence Code section 240, subdivision (a)
    provides that a person is “ ‘unavailable as a witness’ ” when he
    or she is “(1) Exempted . . . on the ground of privilege from
    testifying concerning the matter to which his or her statement
    is relevant.”     Evidence Code section 1291, subdivision (a)
    provides in relevant part: “(a) Evidence of former testimony is
    not made inadmissible by the hearsay rule if the declarant is
    unavailable as a witness and: [¶] . . . [¶] (2) The party against
    whom the former testimony is offered was a party to the action
    or proceeding in which the testimony was given and had the
    right and opportunity to cross-examine the declarant with an
    interest and motive similar to that which he has at the
    hearing.”16
    These requirements for admission of the former testimony
    were satisfied here.      Silveria, having invoked his Fifth
    Amendment privilege against self-incrimination, was
    unavailable as a witness at the joint penalty retrial within the
    meaning of Evidence Code sections 240 and 1291. (People v.
    Butler (2009) 
    46 Cal.4th 847
    , 866, fn. 9 [the declarant’s
    “invocation     of     his Fifth Amendment privilege       made
    him unavailable as a witness”].) Moreover, Travis had the
    opportunity to cross-examine Silveria at the first penalty phase
    16
    Evidence Code section 1291 further provides in relevant
    part:
    “(b) The admissibility of former testimony under this section . . .
    is not subject to: [¶] . . . [¶] (2) Objections based on . . . privilege
    which did not exist at the time the former testimony was given.”
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    PEOPLE v. SILVERIA and TRAVIS
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    with a “motive and interest similar” to that which he had at the
    penalty retrial. (Evid. Code, § 1291, subd. (a)(2).)
    Travis further asserts that Silveria’s former testimony
    should not have been admitted at the penalty retrial because
    when there has been a hung jury, “ ‘the status is the same as if
    there had been no trial.’ ” “Assuming without deciding this rule
    applies to the grant of a penalty phase retrial rather than to an
    unqualified reversal of the entire underlying judgment in a
    capital case” (People v. Ramos (1997) 
    15 Cal.4th 1133
    , 1162), it
    does not override specific statutory provisions such as Evidence
    Code section 1291, which allows the admission of former
    testimony when the requirements of section 1291 have, as here,
    been satisfied. (See Ramos, at pp. 1147, 1164 [prior testimony
    properly admitted at penalty phase retrial under Evid. Code,
    § 1291].) Although Travis asserts he had “no control” over
    Silveria’s decision to testify at the first penalty phase, there is
    no such requirement in section 1291 for former testimony to be
    admissible.
    Travis further asserts that even if the first penalty phase
    testimony of a defendant such as Silveria would generally be
    admissible against a codefendant such as Travis at their penalty
    retrial, it was not admissible here because Silveria objected to
    testifying before both first penalty phase juries, rather than to
    only his individual jury, regarding the circumstances of the
    crime, and the trial court erroneously overruled this objection.
    Travis notes that if defendants had been tried separately, each
    defendant could have asserted a Fifth Amendment privilege not
    to testify in each other’s separate penalty trial. Travis contends
    that under these circumstances, Silveria’s testimony against
    Travis was “obtained in an invalid manner” at the first penalty
    phase, and was therefore improperly introduced against Travis
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    PEOPLE v. SILVERIA and TRAVIS
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    at the penalty retrial. Travis acknowledges that because
    defendants were granted a penalty retrial when the first penalty
    phase ended with hung juries, Travis could not have been
    prejudiced by any error, and he asserts he does not make this
    claim “as a direct claim of error.”
    Even assuming a claim from the first penalty phase is
    properly before us, it is meritless. Silveria waived his privilege
    against self-incrimination by testifying at the first penalty
    phase, and Travis is not in a position to challenge the validity of
    Silveria’s waiver. (See People v. Badgett (1995) 
    10 Cal.4th 330
    ,
    343 (Badgett) [it is settled that a defendant cannot “object to a
    violation of another’s Fifth Amendment privilege against self-
    incrimination”].)
    The People note that we have recognized a defendant may
    seek to exclude a third party’s testimony on the ground “that the
    trial testimony is coerced [citation], and that its admission will
    deprive [the defendant] of a fair trial.” (Badgett, 
    supra,
    10 Cal.4th at p. 344.) “[T]he primary purpose of excluding
    coerced testimony of third parties is to assure the reliability of
    the trial proceedings . . . .” (Id. at p. 347.) The “exclusion is
    based on the idea that coerced testimony is inherently
    unreliable, and that its admission therefore violates a
    defendant’s right to a fair trial.” (Ibid., italics omitted; see
    People v. Clark (2016) 
    63 Cal.4th 522
    , 559–560; People v.
    Jenkins (2000) 
    22 Cal.4th 900
    , 966–967.) We need not decide
    whether these principles apply when a codefendant testifies
    because Travis does not rely on this line of authority or claim
    that Silveria’s former testimony was coerced and therefore
    unreliable. (See Badgett, at pp. 346–348 [noting that different
    exclusionary principles and burdens of proof apply when courts
    89
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    address a violation of a defendant’s 5th Amendment right than
    when addressing that of a third party witness].)
    Rather, Travis asserts that Silveria was offered an
    “invalid choice” at the first penalty phase by the trial court
    between not testifying at all or testifying before both juries, and
    that absent that erroneous ruling Travis would not have had the
    opportunity to cross-examine Silveria at the first penalty phase,
    and hence none of Silveria’s former testimony would have been
    introduced against Travis at the penalty retrial when Silveria
    chose not to testify because it would not have been admissible
    under Evidence Code section 1291. We have already rejected
    above defendants’ claim that they were entitled to separate
    penalty retrials, noting that the high court has held joint capital
    sentencing proceedings do not violate the Eighth Amendment
    right to an individualized sentencing determination. (Kansas v.
    Carr, 
    supra,
     577 U.S. at p. __ [136 S.Ct. at p. 644]; see ante,
    pt. II.B.1.) Given this precedent, it is difficult to discern any
    basis for deeming erroneous a ruling at the first penalty phase
    requiring either defendant who chose to testify regarding the
    circumstances of the capital crime to do so before both
    defendants’ penalty phase juries.
    Travis contends that if defendants had been tried
    separately each defendant could have asserted a Fifth
    Amendment privilege not to testify in each other’s separate
    penalty trial. But the “mere admission of evidence that might
    not otherwise have been admitted in a severed proceeding” does
    not render a trial fundamentally unfair. (Kansas v. Carr, 
    supra,
    577 U.S. at p. __ [136 S.Ct. at p. 645; see id. at p. 644].) “While
    ‘an important element of a fair trial is that a jury consider only
    relevant and competent evidence bearing’ ” on the issue of
    penalty, “a fair trial does not include the right to exclude
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    PEOPLE v. SILVERIA and TRAVIS
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    relevant and competent evidence.” (Zafiro v. United States
    (1993) 
    506 U.S. 534
    , 540 [addressing evidence bearing on guilt
    or innocence].)
    Nor, as Travis contends, did the admission of Silveria’s
    former testimony in the prosecutor’s case-in-chief at the penalty
    retrial unduly prejudice Travis by “allow[ing] the prosecutor to
    repeat the most damaging evidence about the circumstances of
    the . . . crime over and over again.” Although Travis later
    testified in his penalty retrial defense case and described
    Madden’s murder in detail similar to that provided in Silveria’s
    former testimony, that event could not render Silveria’s earlier
    admitted former testimony “cumulative.”
    In sum, the trial court properly admitted Silveria’s former
    testimony regarding Madden’s murder at the joint penalty
    retrial.
    b. Pathologist’s testimony
    Silveria and Travis contend that the trial court
    erroneously permitted Dr. Pakdaman, the pathologist who had
    performed Madden’s autopsy, to opine that Madden’s murder
    was “one of the most atrocious cases” he had ever seen. We
    reject the claim.
    Dr. Pakdaman testified he had performed about 7,000
    autopsies during his career, and did not recall each one. The
    prosecutor asked, “Is this case one that you will ever be able to
    forget?”        Over   defendants’     unsuccessful      objection,
    Dr. Pakdaman replied, “I’ve been to court nine times on this case
    and every time you ask this question I get upset.” He explained,
    “This is one of the most atrocious cases that I’ve ever seen.”
    Even assuming the pathologist’s opinion that the murder
    was “one of the most atrocious cases” he had ever seen was
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    inadmissible, there is no reasonable possibility different penalty
    verdicts would have resulted absent admission of this
    statement. (People v. Lancaster (2007) 
    41 Cal.4th 50
    , 94 [the
    standard that an “error is reversible if there is a reasonable
    possibility it affected the verdict . . . is essentially the same as
    the harmless beyond a reasonable doubt standard of
    Chapman v. California (1967) 
    386 U.S. 18
    , 24”]; see People v.
    Brown (1988) 
    46 Cal.3d 432
    , 448 [the reasonable possibility
    standard applies “when assessing the effect of state-law error at
    the penalty phase of a capital trial”].) His statement was brief
    and isolated. More compelling was his detailed description of
    Madden’s 32 “slash-like superficial cuts” and “stab-like wounds”
    in his neck, chest, and abdomen, including stab wounds that
    penetrated his heart and fractured his ribs, and
    Dr. Stratbucker’s testimony that marks made by the stun gun
    on Madden’s thigh were inflicted while he was alive, and that
    Madden remained conscious “to the bitter end.” Given this
    graphic evidence of defendants’ attack on Madden, any error in
    admitting Dr. Pakdaman’s opinion regarding atrociousness was
    harmless beyond a reasonable doubt.
    c. Evidence of lying in wait and torture
    Silveria and Travis contend that the trial court erred in
    allowing the prosecutor to present evidence of and argument on
    torture and lying in wait at the penalty retrial because Silveria’s
    guilt phase jury had found not true the lying-in-wait special
    circumstance allegation and had deadlocked on the torture-
    murder special-circumstance allegation, and Travis’s guilt
    phase jury had found not true the torture-murder special-
    circumstance allegation, and had deadlocked on the lying-in-
    wait special-circumstance allegation. We reject the claim.
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Evidence of lying in wait and torture was part of the
    circumstances of the crime and hence admissible under
    section 190.3, factor (a). Indeed, the high court has held that
    when a special circumstance the jury has found true is set aside
    on appeal, no constitutional violation occurs if “one of the other
    sentencing factors enables the sentencer to give aggravating
    weight to the same facts and circumstances.” (Brown v. Sanders
    (2006) 
    546 U.S. 212
    , 220; see 
    id.
     at pp. 214–215.)
    In Brown v. Sanders, the high court considered whether
    the circumstance that a California jury had found true four
    special circumstance allegations, including two that were later
    set aside on appeal, rendered the death judgment
    “unconstitutional by reason of its adding an improper element
    to the aggravation scale in the jury’s weighing process.” (Brown
    v. Sanders, 
    supra,
     546 U.S. at p. 214; see id. at p. 215.) It
    observed that under section 190.3, factor (a), the trial court
    instructed the jury to consider and weigh “ ‘[t]he circumstances
    of the crime of which the defendant was convicted in the present
    proceeding and the existence of any special circumstances found
    to be true.’ ” (Brown v. Sanders, at p. 214; see id. at p. 215.) The
    high court reasoned that “because all of the facts and
    circumstances admissible to establish” the two later invalidated
    special circumstance allegations “were also properly adduced as
    aggravating facts bearing upon the ‘circumstances of the crime’
    sentencing factor, . . . [t]hey were properly considered whether
    or not they bore upon the invalidated eligibility factors.” (Id. at
    p. 224.)
    Likewise here, all of the aggravating facts and
    circumstances underlying the special circumstance allegations
    on which the jury hung or found not true were also properly
    admitted and considered by the jury as evidence of the
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    PEOPLE v. SILVERIA and TRAVIS
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    circumstances of the crime under section 190.3, factor (a).
    Moreover, because this evidence was properly admitted, the
    prosecutor was free to rely on it in his closing argument.
    (People v. Rhoades (2019) 
    8 Cal.5th 393
    , 448 (Rhoades) [“The
    fact that the guilt jury did not unanimously find kidnapping
    proved beyond a reasonable doubt did not preclude the
    prosecution from arguing, as a circumstance of the capital crime
    (Pen. Code, § 190.3, factor (a)), that defendant had in fact
    abducted the victim . . . .”].)
    Travis asserts evidence of torture was precluded by
    section 190.3, which provides in pertinent part: “In the
    proceedings on the question of penalty, evidence may be
    presented by both the people and the defendant as to any matter
    relevant to aggravation, mitigation, and sentence including, but
    not limited to, the nature and circumstances of the present
    offense, . . . the presence or absence of other criminal activity by
    the defendant which involved the use or attempted use of force
    or violence or which involved the express or implied threat to
    use force or violence . . . . [¶] . . . [¶] However, in no event shall
    evidence of prior criminal activity be admitted for an offense for
    which the defendant was prosecuted and acquitted.” (Italics
    added.) The italicized language on which Travis relies concerns
    alleged prior criminal activity, not evidence of the circumstances
    of the capital crime. Here Travis was found guilty — not
    acquitted — of the first degree murder of Madden.
    Travis asserts there is no rational basis for treating
    evidence of a special circumstance allegation found not true
    differently than evidence of a prior crime for which the
    defendant has been acquitted. The electorate could rationally
    conclude that the sentencing jury should consider all of the
    circumstances of the capital offense even if it or a prior jury had
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    previously found these circumstances did not satisfy the
    elements of a special circumstance allegation, but that a prior
    crime for which the defendant had been acquitted lacked similar
    relevance.
    Silveria asserts that the admission of evidence of torture
    and lying in wait “retr[ied]” the torture-murder and lying-in-
    wait special-circumstance allegations and placed him in double
    jeopardy with respect to those allegations. Not so. The penalty
    retrial jury was not asked to make findings on whether the
    elements of these special circumstance allegations had been
    satisfied. Nor, for this same reason, and contrary to Silveria’s
    further claim, did the admission of torture evidence at the
    penalty retrial, without first successfully retrying the torture-
    murder special-circumstance allegation on which Silveria’s guilt
    jury hung, and which was later struck, violate Silveria’s right to
    a speedy trial on that allegation. Once again, evidence of torture
    and lying in wait was properly admitted at the penalty retrial
    as a circumstance of the capital crime despite the fact that the
    guilt phase jury was unable to reach a verdict on or found not
    true these allegations.
    Travis contends that the court erred in not instructing the
    penalty retrial jury, or allowing him to inform the jury during
    closing argument, that Travis’s guilt phase jury had found not
    true the torture-murder special-circumstance allegation. There
    was no error. We have previously held that the “fact that a first
    jury deadlocked . . . is irrelevant to the issues before the jury on
    a penalty retrial” (People v. Thompson (1990) 
    50 Cal.3d 134
    ,
    178) because such evidence has no bearing on a defendant’s
    character or record, or on the circumstances of the offense
    (People v. Hawkins (1995) 
    10 Cal.4th 920
    , 968). For these same
    reasons, and given evidence of torture was properly admitted at
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    PEOPLE v. SILVERIA and TRAVIS
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    the penalty retrial, evidence that Travis’s guilt phase jury found
    that the elements of the torture-murder special-circumstance
    allegation had not been satisfied was irrelevant.
    Travis notes that the first penalty jury had also decided
    Travis’s guilt, and so was aware when hearing evidence of
    torture at the first penalty phase that it had previously found
    the torture-murder special-circumstance allegation not true. He
    argues that not informing the penalty retrial jury that the guilt
    phase jury made this finding unfairly placed the prosecutor in a
    stronger position and was inconsistent with the general
    principle that after a jury deadlocks the parties are placed in the
    same position at retrial as if there had been no original trial.
    We disagree. In Brown v. Sanders, the trial court instructed the
    jury to consider as one of the sentencing factors “ ‘the existence
    of any special circumstances . . . found to be true,’ ” thus giving
    the facts underlying the special circumstances “special
    prominence.” (Brown v. Sanders, 
    supra,
     546 U.S. at p. 224,
    quoting § 190.3, factor (a).) The high court concluded that even
    assuming this instruction caused the jury to give somewhat
    greater weight to those facts underlying a later invalidated
    special      circumstance,       any     such      impact      was
    “ ‘ “inconsequential” ’ ” and could not “ ‘fairly be regarded as a
    constitutional defect in the sentencing process.’ ” (Brown v.
    Sanders, at p. 225; see id. at p. 224.) By analogy, the same lack
    of consequence would result when the first penalty jury knew as
    it considered evidence of torture at the first penalty phase that
    it had previously found the torture-murder special-circumstance
    allegation not true, but the penalty retrial jury did not have this
    knowledge when it considered that same evidence.
    In sum, the trial court properly admitted evidence of lying
    in wait and torture.
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    PEOPLE v. SILVERIA and TRAVIS
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    d. School loan money scam evidence
    Silveria contends the trial court erred in admitting
    evidence of a loan money scam. We reject the claim.
    During the prosecutor’s case-in-chief at the penalty
    retrial, he introduced Silveria’s testimony from the first penalty
    phase recounting that Silveria had attended the Technical
    Training Center computer school for several months as a full-
    time student. Silveria explained he had been “attracted” to the
    school because he would be “able to get some type of loan and
    there was some type of . . . scam involved at least from the
    person . . . who brought this up. . . . [Y]ou get this loan and . . .
    you’re supposed to get the balance or something like that. So . . .
    it sounded good to me.” On Travis’s cross-examination at the
    penalty retrial, the prosecutor asked whether he and Silveria
    had attended computer training school. Travis replied that he,
    Silveria, and a friend named Pete Rosa had attended the
    Technical Training Center. Travis explained Rosa, “had come
    up with a scam to get some type of loan money through this
    school and asked if we were willing to go with him.” The men
    erroneously assumed they were going to be paid the full amount
    of a school loan up front, and planned to “quit school” and use
    the money to buy drugs. After defendants learned they would
    not receive full loan checks in advance, they decided to “stay
    anyway,” and attended about two months of classes before
    leaving the school.
    On appeal, Silveria contends the trial court erred in
    permitting Travis’s testimony that Silveria had participated in
    a “scam” to obtain money from a computer school because it was
    not relevant to any of the factors in section 190.3 or as rebuttal
    to Silveria’s penalty defense case. As noted, Silveria appeared
    to also describe the loan as a “scam” during his first penalty
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    phase testimony that was admitted at the penalty retrial. Even
    assuming for the sake of argument Travis’s additional detail
    regarding the failed monetary scheme was improperly admitted,
    there is no reasonable possibility the penalty verdict would have
    been different in the absence of this evidence. The prosecutor
    did not mention the loan scam in his closing argument, and the
    evidence was of marginal probative value when compared with
    the capital crime.
    e. Stun gun evidence
    Silveria contends the trial court erred in allowing the
    prosecutor to attempt to elicit evidence of Silveria’s use of a stun
    gun several days before Madden’s murder. He also presents this
    claim as one of prosecutorial misconduct. We reject the claim.
    On direct examination, Travis testified that on about
    January 24, 1991, several days before Madden’s January 28
    murder, Travis engaged in a fist fight with a man whom he
    believed had stolen a “beeper” from Jennings. On cross-
    examination, the prosecutor asked Travis whether before the
    fight Silveria, Jennings, or Spencer had “display[ed] the stun
    gun.” Travis answered, “I don’t recall seeing the stun gun.” The
    prosecutor subsequently asked whether before the fight Travis,
    Silveria, Spencer, Jennings, or Rackley had displayed a stun
    gun and repeatedly hit the “test button.” Travis replied, “I don’t
    recall seeing the stun gun there, no.” Nor did Travis’s review of
    a document shown to him by the prosecutor refresh his
    recollection as to whether before the fight he or one of his friends
    had “displayed a stun gun and kept hitting the test button.”
    Silveria contends the prosecutor committed misconduct by
    intentionally seeking “to elicit false stun gun evidence” against
    Silveria that was inadmissible under section 190.3, and that was
    misleading because the prosecutor “knew that Rackley was the
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    person who pulled the stun gun during this incident.” He
    further contends that the trial court erred when it permitted the
    prosecutor to attempt to elicit this testimony.
    There was no misconduct or trial court error. Contrary to
    Silveria’s characterization, the prosecutor’s questions regarding
    the display of a stun gun were not limited to Silveria, and did
    not imply that Silveria “had committed untoward and possibly
    criminal . . . acts.”   Nor, given that Travis had testified
    regarding the fight on direct examination, did the trial court err
    in allowing the prosecutor to explore on cross-examination the
    circumstances surrounding the fight. Even if we were to assume
    error for the sake of argument, it was harmless beyond a
    reasonable doubt. Travis repeatedly testified that he saw no one
    before the fight with a stun gun, and the court instructed the
    jury at the end of the penalty retrial that “[s]tatements made by
    the attorneys during the trial are not evidence.”
    f. Statutory rape evidence
    Silveria contends the trial court erred in allowing the
    prosecutor to present evidence that Silveria had impregnated
    Travis’s sister when she was 15-years old. We reject the claim.
    On cross-examination of D.S., Travis’s younger sister, in
    Travis’s penalty defense case, the prosecutor asked D.S. about
    different events that occurred during a time period when D.S.
    was 14 or 15 years old. At one point, the prosecutor asked D.S.
    whether she had “a relationship with [Silveria] at that time?”
    She replied, “Yeah, I did.” The prosecutor asked, “[H]ow was it
    that you and Danny [Silveria] started going together?” D.S.
    replied, “Well, he was at my house and . . . I was attracted to
    him.” The prosecutor then asked, “[H]ow old were you at that
    time?” D.S. replied, “Fifteen is when I got pregnant.” The
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    prosecutor asked, “By Danny?” D.S. replied, “Yes.” Silveria’s
    foundation objection was overruled.
    Silveria contends statutory rape is not admissible as
    aggravating evidence under section 190.3, factor (b) or on
    rebuttal. Assuming Silveria’s claim is preserved on appeal by
    his foundation objection below, it is meritless. Nothing in the
    prosecutor’s question asking D.S. how old she was when she
    dated Silveria reasonably elicited D.S.’s response that she had
    been 15 years old when she became pregnant. The prosecutor’s
    brief follow up question simply clarified D.S. meant Silveria was
    the father, hence she was 15 years old when she dated Silveria.
    Moreover, the trial court instructed the jury that other than
    evidence of the robberies of Youssef at Quik Stop Market and
    Graber at Gavilan Bottle Shop, a “juror may not consider any
    evidence of any other criminal acts or activity as an aggravating
    circumstance” under section 190.3, factor (b). We presume the
    jury understood and followed this instruction. (Hajek and Vo,
    supra, 58 Cal.4th at p. 1178.)
    g. Attempted murder evidence
    Silveria contends the trial court erred in admitting
    evidence of a “highly inflammatory and prejudicial attempted
    murder by” the Nuestra Familia, “a notorious prison gang.” We
    reject the claim.
    At the end of Correctional Officer Lausten’s direct
    examination in Silveria’s defense case, he opined that fellow
    Correctional Officer Jeanine Powell at times lacked an ability to
    get along with and be an effective correctional officer to the
    inmates because she engaged in verbal confrontations with
    inmates and then lost control in the module. She also
    overreacted to the behavior of mental health patients.
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    PEOPLE v. SILVERIA and TRAVIS
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    On cross-examination, the prosecutor asked Correctional
    Officer Lausten if he considered himself an effective correctional
    officer. Officer Lausten replied, “Yes, sir, I certainly do.” The
    prosecutor then asked whether Officer Lausten knew “who
    Gabriel Coronado was,” and the officer replied, “Yes.” When the
    prosecutor asked how Officer Lausten knew Coronado, Travis
    objected.
    At sidebar Travis’s counsel recalled an attack on Coronado
    had been carried out by four Nuestra Familia members. The
    trial court ruled that Silveria had opened the door to the
    evidence, and overruled the objection.
    In front of the jury, the prosecutor asked Officer Lausten,
    “[D]id Gabriel Coronado have his throat cut in your module
    when you were nearby?” Officer Lausten agreed, clarifying it
    had been the side of Coronado’s neck and not his throat, and
    that although Officer Lausten had been nearby, he had not seen
    anything until after the incident because the attack happened
    quickly and he had been on the telephone with another officer.
    He further agreed with the prosecutor that events in a jail
    setting can happen quickly and unpredictably, and said it was
    “very possible” that sometimes correctional officers do not
    observe “everything that happens.”
    On cross-examination by Travis, Officer Lausten agreed
    with defense counsel that “there were four gang members who
    hit” Coronado, and that the assault was “very unusual.” In
    Officer Lausten’s nine years at the jail no similar assault had
    occurred.
    As can be seen, no reference to the Nuestra Familia prison
    gang was made before the jury. Rather the gang was only
    mentioned by Travis’s counsel during the bench conference. The
    import of the prosecutor’s line of inquiry on cross-examination
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    PEOPLE v. SILVERIA and TRAVIS
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    was simply to demonstrate that Officer Lausten may have
    similarly been unaware of events legitimately shaping Officer
    Powell’s reaction to inmates. Although Officer Lausten agreed
    with Travis’s counsel that four gang members had attacked
    Coronado, the gang to which they belonged was never identified.
    In Silveria’s reply brief, he acknowledges that the record
    does not demonstrate that the jury heard the reference to the
    Nuestra Familia gang. He asserts that “evidence of an
    unrelated attempted murder by means of a sharp instrument
    which resulted in cuts to the victim’s throat are nevertheless
    prejudicial since this attack is very similar to the manner in
    which Mr. Madden was killed.” But nothing in Officer Lausten’s
    testimony indicated Silveria was present at or in any way
    connected to the attack on Coronado.
    5. Excluded Mitigating Evidence
    Defendants contend the trial court erred in excluding
    certain mitigating evidence. We reject the claim.
    “ ‘The Eighth and Fourteenth Amendments require that
    the sentencer in a capital case not be precluded from considering
    any relevant mitigating evidence, that is, evidence regarding
    “any aspect of a defendant’s character or record and any of the
    circumstances of the offense that the defendant proffers as a
    basis for a sentence less than death.” ’ [Citation.] ‘Nonetheless,
    the trial court still “ ‘determines relevancy in the first instance
    and retains discretion to exclude evidence whose probative
    value is substantially outweighed by the probability that its
    admission will create substantial danger of confusing the issues
    or misleading the jury.’ ” ’ (People v. Williams (2006) 
    40 Cal.4th 287
    , 320 [
    52 Cal.Rptr.3d 268
    , 
    148 P.3d 47
    ]; see Romano v.
    Oklahoma (1994) 
    512 U.S. 1
    , 12 [
    129 L.Ed.2d 1
    , 
    114 S.Ct. 2004
    ]
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    [‘The Eighth Amendment does not establish a federal code of
    evidence to supersede state evidentiary rules in capital
    sentencing proceedings.’]; Lockett v. Ohio (1978) 
    438 U.S. 586
    ,
    604, fn. 12 [
    57 L.Ed.2d 973
    , 
    98 S.Ct. 2954
    ] [‘Nothing in this
    opinion limits the traditional authority of a court to exclude, as
    irrelevant, evidence not bearing on the defendant’s character,
    prior record, or the circumstances of his offense.’].) ‘The
    meaning of relevance is no different in the context of mitigating
    evidence introduced in a capital sentencing proceeding’ from
    what it is in any other context. (McKoy v. North Carolina (1990)
    
    494 U.S. 433
    , 440 [
    108 L.Ed.2d 369
    , 
    110 S.Ct. 1227
    ].) Thus,
    ‘ “[r]elevant mitigating evidence is evidence which tends
    logically to prove or disprove some fact or circumstance which a
    fact-finder could reasonably deem to have mitigating value.” ’
    (Ibid.; see Evid. Code, § 210.)” (People v. Farley (2009)
    
    46 Cal.4th 1053
    , 1128.)
    a. Former juror and alternate juror
    Travis contends that the trial court erroneously excluded
    testimony by former Travis Juror No. 8 and former Travis
    Alternate Juror No. A-4 from the guilt and first penalty phase.
    We conclude there was no abuse of discretion.
    (1) Factual background
    Travis’s first penalty phase ended on February 21, 1996.
    On November 25, 1996, during a hearing held before the penalty
    retrial, Travis’s counsel made an offer of proof regarding his
    motion to admit the testimony of former Juror No. 8 and former
    Alternate Juror No. A-4. He observed that since the mistrial,
    No. A-4 had visited Travis in jail “probably a couple of times a
    month.” In counsel’s view, A-4 knew “more about John Travis
    than probably anybody else on the face of this earth.” A-4 was
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    Opinion of the Court by Groban, J.
    expected to testify on “the issue of rehabilitation,” and opine that
    Travis should not be executed because he “can do some concrete,
    constructive things in his life.” “[S]ome months” before the
    hearing, former Juror No. 8, who had been the jury foreperson
    and one of two jurors to vote against the death penalty, told
    Travis’s counsel that she also wanted to visit Travis. She had
    apparently done so, and had “discussed some of the things that
    [were] important” to Travis. She was expected to testify that
    Travis was “sincere in what he says,” and had “matured beyond”
    his level at the time of Madden’s murder. Both potential
    witnesses had observed that Travis had “transformed way
    beyond” the person he was when he murdered Madden. Counsel
    observed that although Travis had “recently reestablished his
    relationship with his mother,” he “has had in almost six years of
    custody virtually no visitation from outside people.” The trial
    court precluded testimony by the former juror and former
    alternate juror.
    The court stated: “[T]he Court has gone to great lengths,
    both in reworking the questionnaire and will in its own voir dire,
    to keep from the jury in this penalty phase trial the fact of a
    prior penalty phase, its inability to reach a verdict, the
    numerical split, and which way the voting went. For the sake of
    convenience the Court will call this ‘prior jury results.’ The
    Court has already ruled that these prior jury results are
    inadmissible and that witnesses must be warned by counsel not
    to let these facts come out. And counsel have agreed to this.
    [The prosecutor] was correct when he stated that calling prior
    jurors as witnesses is ‘fraught with peril.’ Calling these jurors
    increases the possibility of the prior jury results leaking out at
    least a hundredfold on direct examination alone. The fact and
    rule of law that cross-examination could rightly go into the basis
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    of any opinion that a juror would give as to character,
    reputation, . . . and how they know the defendant, raises the
    possibility of a leak even more. Add to that fact that the
    [prosecutor] could then call death voting jurors in rebuttal
    makes the . . . idea intolerable and completely improper. Once
    this prior jury result is out the biggest danger of all can be seen.
    The current jury would be tempted to and could actually
    abdicate its own duty in favor of a prior jury’s findings, even
    though there was a mistrial. No one could possibly say that this
    would be proper. For these reasons alone neither the People nor
    the defense will be allowed to call as witnesses any prior juror,
    including alternates.”
    (2) Analysis
    Travis contends that if former Travis Juror No. 8 and
    former Travis Alternate Juror No. A-4 “had been permitted to
    testify, the [penalty retrial] jury would have learned that these
    two witnesses had received detailed information about John
    Travis’ background and about his crimes, from various
    witnesses who testified at the guilt and penalty phases of the
    first trial [and] . . . then took it upon themselves, with no
    expectation of compensation or other benefit, to visit John
    Travis in the jail on a regular basis, and had continued to do so
    over a long enough period to give them meaningful insight into
    the sincerity of his religious conversion, his recovery from
    addiction, and his desire to help other inmates.”
    As a preliminary matter, Travis’s counsel did not
    represent at the hearing that the former juror and alternate
    juror would testify to the “sincerity of [Travis’s] religious
    conversion, his recovery from addiction, and his desire to help
    other inmates.”        Rather, counsel broadly described the
    anticipated testimony: A-4 was expected to testify regarding
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    “the issue of rehabilitation,” and opine Travis should not be
    executed because he “can do some concrete, constructive things
    in his life.” In counsel’s view, A-4 knew “more about John Travis
    than probably anybody else on the face of this earth.” Former
    Juror No. 8 had “discussed some of the things that [were]
    important” to Travis, and was expected to testify that Travis
    was “sincere in what he says.” Both potential witnesses had
    observed that Travis had “transformed way beyond” the person
    he was when he murdered Madden.17
    Moreover, Evidence Code section 352 gives the trial court
    wide latitude to “exclude evidence if its probative value is
    substantially outweighed by the probability that its admission
    will (a) necessitate undue consumption of time or (b) create
    substantial danger of undue prejudice, of confusing the issues,
    or of misleading the jury.” When, as here, the potential
    witnesses and penalty retrial jury share the unique role of jurors
    (and alternate jurors), a trial court may be legitimately
    concerned that the proffered character testimony could unduly
    influence the penalty retrial jury or encroach on its own
    deliberative process. (See People v. Peoples (2016) 
    62 Cal.4th 718
    , 758–759 (Peoples) [“The trial court could have reasonably
    concluded that the admission of [the four former jurors’]
    testimony would be more prejudicial than probative and would
    confuse jurors for the penalty retrial about the ultimate task”].)
    Although Travis contends the trial court did not rely on
    Evidence Code section 352, it implicitly did so by considering the
    17
    Travis also cites to a letter dated May 30, 1997, from
    former Travis Alternate Juror No. A-4 to Travis’s probation
    officer. This information, of course, was not before the trial
    court when it ruled in 1996.
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    possibility that allowing Travis to present a former juror and
    alternate juror could unduly influence the jury and impede the
    performance of its duty, and lead to time-consuming rebuttal
    testimony by former jurors who had voted in favor of the death
    penalty. Nor is a trial court required to “ ‘expressly weigh
    prejudice against probative value or even expressly state that it
    has done so, if the record as a whole shows,’ ” as here, that “ ‘the
    court was aware of and performed its balancing function under
    Evidence Code section 352.’ ” (People v. Lewis (2009) 
    46 Cal.4th 1255
    , 1285.)
    For these same reasons we reject Travis’s oral argument
    assertion that the trial court could not make a ruling under
    Evidence Code section 352 without holding an evidentiary
    hearing. The primary concern here was not what these
    witnesses would say when testifying, but who they were. Travis
    makes no effort to explain how testimony at such a hearing by
    the former juror and alternate juror would have mitigated the
    inherent concern that potential witnesses who had previously
    shared the same unique role as the penalty retrial jury (and its
    alternates) could unduly influence the penalty retrial jury or
    encroach on its deliberative process.
    In addition, the possibility that allowing such testimony
    would lead to time-consuming rebuttal testimony by former
    jurors who had voted in favor of the death penalty or who had a
    negative view of Travis’s character further demonstrates that
    the trial court acted well within its discretion. (Peoples, supra,
    62 Cal.4th at p. 759 [“The trial court also could have reasonably
    concluded that their testimony would have opened the door for
    the prosecution to call other individuals who attended the first
    penalty trial, thus expending an undue amount of the court’s
    time”].) Although Travis contends that the trial court could
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    have avoided any prejudice by admonishing the penalty retrial
    jury “to give no greater weight to the testimony of the proffered
    witnesses just because they had formerly been a juror and an
    alternate juror,” he did not suggest such an admonition below,
    nor would its availability eliminate the trial court’s discretion to
    weigh other factors and preclude the testimony.
    Nor, as Travis contends, was the preclusion of this
    testimony Skipper error. (Skipper v. South Carolina (1986)
    
    476 U.S. 1
    , 3–5.) In Skipper, the high court found prejudicial
    error in the exclusion of two jailers and one “ ‘regular visitor’ ”
    who would have testified that the defendant had “ ‘made a good
    adjustment’ during his time spent in jail.” (Id. at p. 3.) It
    rejected the argument that the testimony was merely
    cumulative to similar testimony by Skipper and his former wife,
    noting that the latter testimony was “the sort of evidence that a
    jury naturally would tend to discount as self-serving. The
    testimony of more disinterested witnesses — and, in particular,
    of jailers who would have had no particular reason to be
    favorably predisposed toward one of their charges — would
    quite naturally be given much greater weight by the jury.” (Id.
    at p. 8; see id. at p. 7.) Here, Travis presented the testimony of
    two jailers, Correctional Officers Forster and Damewood,
    regarding his respectful and studious jail behavior, his faithful
    work as a trustee, and his potential to change the lives of other
    inmates. (See ante, pp. 31–32.) Thus Travis was accorded the
    most crucial testimony Skipper was denied. (Skipper, at p. 8.)
    For the reasons noted, percipient witness testimony by former
    jurors and alternate jurors is qualitatively different and
    inherently more problematic than the jailer or visitor testimony
    favorably discussed in Skipper.
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    Travis further contends that testimony by a juror is
    contemplated by Evidence Code section 704.18 This section
    provides that when one party calls a sitting juror as a witness,
    and the other party objects, a mistrial is declared. (Evid. Code,
    § 704, subds. (b), (c).)    Section 704 does not address the
    circumstances under which the now former juror may testify at
    any retrial, or limit the trial court’s discretion to exclude such
    testimony under Evidence Code section 352. Here we conclude
    that when those circumstances involve calling a former guilt
    and penalty phase juror and alternate juror to testify as
    character witnesses at the penalty retrial, the trial court acts
    well within its discretion in precluding such testimony.
    18
    Evidence Code section 704 provides: “(a) Before a juror
    sworn and impaneled in the trial of an action may be called to
    testify before the jury in that trial as a witness, he shall, in
    proceedings conducted by the court out of the presence and
    hearing of the remaining jurors, inform the parties of the
    information he has concerning any fact or matter about which
    he will be called to testify.
    “(b) Against the objection of a party, a juror sworn and
    impaneled in the trial of an action may not testify before the jury
    in that trial as a witness. Upon such objection, the court shall
    declare a mistrial and order the action assigned for trial before
    another jury.
    “(c) The calling of a juror to testify before the jury as a
    witness shall be deemed a consent to the granting of a motion
    for mistrial, and an objection to such calling of a juror shall be
    deemed a motion for mistrial.
    “(d) In the absence of objection by a party, a juror sworn
    and impaneled in the trial of an action may be compelled to
    testify in that trial as a witness.”
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    PEOPLE v. SILVERIA and TRAVIS
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    In sum, the trial court acted within its discretion in
    excluding testimony by former Travis Juror No. 8 and former
    Travis Alternate Juror No. A-4.
    b. Defense counsel’s proposed testimony
    Travis contends that the trial court erred in placing
    unreasonable conditions on proffered testimony by his trial
    counsel. We conclude any error was harmless beyond a
    reasonable doubt.
    (1) Factual background
    After the trial court precluded testimony by the first
    penalty phase juror and alternate juror, and before the start of
    the penalty retrial, Travis moved to have his trial counsel,
    James Leininger, either testify on his behalf or withdraw.
    Travis sought to have Leininger testify “to the issue of [Travis’s]
    moral character[,] to wit: his recovery from alcohol and drug
    addiction, his commitment to the maintenance of this recovery
    through the twelve steps of Alcoholics Anonymous, and the
    practice of these steps in his everyday life, thus reflecting a
    marked departure from the moral and spiritual bankruptcy he
    experienced at the time of the crime to [his] present day status
    of being a child of God in good standing with his Creator.” He
    asserted that “[i]f such testimony is not allowed, John Travis
    will have no witnesses of his choosing to . . . show[] the change
    in his moral character.” “The true character of the real John
    Travis who has risen from the grasp of moral depravity to
    become a remorseful, loving person who can and does every day
    seek to implement the will of God will never be known to the
    jury.”
    At the February 5, 1997 motion hearing, Leininger
    asserted that Reverend Charon, not Leininger, would testify as
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    to Travis’s “religious progress.” Leininger intended to testify
    about “what [Leininger had] observed about Mr. Travis over a
    period of years, what [Travis] was like the first couple of years
    [Leininger] dealt with him, [and] what he was like after that.”
    Leininger asserted that he, Leininger, was the only known
    witness “who has had any consistent contact with Mr. Travis
    over the last six years [and] who has any knowledge of recovery
    or what Mr. Travis is going through.” The prosecutor objected
    to testimony by defense counsel.
    The court stated no case precluded Leininger from
    testifying, but the court believed “it’s a completely foolish idea.”
    It observed that in a penalty phase, “the argument to the jury is
    almost as important as the evidence itself, and if an attorney
    cannot do that with credibility” because he had previously lost
    credibility while testifying as a witness, “then that goes to the
    defendant’s definite detriment.” The court took the matter
    under submission, offering the parties guidelines or “pitfalls” to
    consider before it ruled the following week. Travis would be
    required to completely waive his attorney-client privilege; if
    Leininger qualified as an expert, “he will only be able to testify
    as an expert regarding recovery as a certified alcohol and drug
    counselor,” not regarding religion or “as a character witness”;
    the prosecutor could request to interview Leininger, and if
    Leininger refused, the prosecutor could mention that refusal
    during closing argument; if the prosecutor sought discovery,
    Leininger’s files would “probably” have to be turned over to the
    court for in camera review; it would be improper for Leininger
    to argue his own credibility during closing argument; and no
    continuance would be granted for opening statements scheduled
    to begin about one week later.
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    At the next hearing on February 11, 1997, Leininger said
    he had “sought the advice of others and conveyed this to Mr.
    Travis and we have had a significant opportunity to talk about
    the pros and cons. . . . Given the restriction of moral and
    character evidence not being testified to,” Leininger would not
    testify, but would get another person to assess Travis, and “do
    the recovery work with [that] professionally-trained person.”
    (2) Analysis
    We have held that “a trial court may not deny the
    defendant the right to present . . . evidence through the
    testimony of his counsel, notwithstanding the provisions
    relating to testimony by counsel in the Rules of Professional
    Conduct.”19 (People v. Marquez (1992) 
    1 Cal.4th 553
    , 574.)
    Here, the trial court recognized it could not prohibit Leininger’s
    testimony, but Travis argues that the court placed conditions on
    that testimony that were so onerous they deprived him of critical
    mitigating evidence.
    Assuming for the sake of argument that the trial court
    imposed these conditions should Leininger testify, and that this
    imposition was improper, any error was harmless beyond a
    reasonable doubt. (People v. Earp (1999) 
    20 Cal.4th 826
    , 879
    [any error in barring defense counsel from testifying was
    harmless in light of other evidence].) Travis asserts that he
    “intended to offer character evidence in two very narrow areas
    — [his] recovery efforts and his remorse for the homicide.”
    19
    Rules of Professional Conduct, rule 3.7 provides as
    relevant: “(a) A lawyer shall not act as an advocate in a trial in
    which the lawyer is likely to be a witness unless: [¶] . . . [¶]
    (3) the lawyer has obtained informed written consent from the
    client.”
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    PEOPLE v. SILVERIA and TRAVIS
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    Travis also notes that Leininger’s testimony regarding Travis’s
    recovery process “would have added nothing to the similar
    testimony from Dr. Cermak, [Reverend] Charon, and Sharon
    Lutman.”
    We therefore consider whether Leininger would have
    provided critical evidence on the issue of Travis’s remorse. We
    conclude ample other evidence of remorse was presented. Travis
    testified at the penalty retrial that he accepted the jury’s guilt
    verdict and had admitted his responsibility for Madden’s
    murder at the time of his arrest. His purpose in testifying was
    to tell the truth and to let the jury know “that I am remorseful
    for what I have done.” He described what he had done as
    “heinous,” and was “ashamed and humiliated” he had caused
    others pain. He had unsuccessfully asked his attorney if he
    could write to the Madden family or seek their forgiveness in
    court. In addition, Reverend Charon, who had known Travis for
    about four years, testified that Travis appeared “very
    remorseful, and was earnestly seeking a way, under the
    circumstances, that he could express . . . his regret, and also, if
    there was anything that was possible [for him] to make amends,
    recognizing that you can never really make full amends.”
    Defense expert Lutman testified Travis had appeared sincere
    and the most emotional when discussing his desire to make
    amends to Madden’s family. Although this testimony by Travis,
    Reverend Charon, and Lutman could be viewed by the jury as
    self-serving or biased, Leininger — who had represented Travis
    for six years — would have also reasonably been viewed as
    closely aligned with Travis and not as an objective and
    disinterested witness.
    To the extent Travis asserts Leininger would have
    testified regarding Travis’s transformation in jail, ample
    113
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    evidence in this area was also otherwise adduced. Two jailers,
    Correctional Officers Forster and Damewood, testified
    regarding Travis’s respectful and studious jail behavior, his
    faithful work as a trustee, and his potential to change the lives
    of other inmates. (See ante, pp. 31–32.) In addition, Travis
    testified that after the failed escape plan, he realized he had
    been “making the wrong decisions,” and “started thinking real
    hard about what I want[ed] to do with my life.” He began
    recovery and started learning about AA and Narcotics
    Anonymous, although no AA meetings were available where
    Travis was housed. Travis further testified that he also began
    to work with Reverend Charon. He said he had participated in
    the jail’s Tutor Program that helped inmates learn to read and
    do math. He often shared his message of recovery with these
    individuals. It was Travis’s “heart’s desire . . . to help those who
    have been in the same situation I have.” Travis’s sister D.S.
    testified she saw Travis shortly before Madden’s murder, and
    said his “eyes looked dead and he looked like he [had] lost his
    soul,” and he appeared to be cold, distant and “mad at the
    world.” By contrast, D.S. had visited Travis in jail, and testified,
    “[H]e’s got . . . this glow,” and there was hope in his eyes.
    In sum, we conclude any assumed error in any conditions
    placed on defense counsel Leininger’s proposed testimony was
    harmless beyond a reasonable doubt.
    c. Silveria’s statement to police
    Silveria contends that the trial court erroneously excluded
    his statement to police, and thus mitigating evidence that on the
    night of his arrest he had acknowledged his involvement in and
    expressed remorse for Madden’s murder. He further claims that
    the exclusion of this evidence is a consequence of the trial court’s
    114
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    erroneous denial of his penalty retrial severance motion. (See
    ante, pt. II.B.1.b.) We reject the claim.
    At the guilt phase, each defendant’s statement was played
    for his jury. When the trial court denied Silveria’s penalty
    retrial severance motion, it ruled that the prosecutor could not
    introduce Silveria’s (or Travis’s) statement to police in his case-
    in-chief because of confrontation clause concerns,20 but could
    20
    We have previously assumed without deciding that the
    confrontation clause applies to penalty phase evidence. (Rangel,
    supra, 62 Cal.4th at p. 1232; People v. Fuiava (2012) 
    53 Cal.4th 622
    , 720; see Hajek and Vo, supra, 58 Cal.4th at pp. 1165, 1176
    [applying the Aranda/Bruton rule to cross-examination by the
    prosecutor of Hajek’s penalty defense expert, a clinical
    psychologist, who repeatedly testified on cross-examination that
    Hajek had denied killing the victim]; id. at p. 1177 [holding
    Hajek’s statement to his psychologist that he did not kill the
    victim did not facially incriminate Vo because its “incriminatory
    effect depended entirely on its linkage to other evidence”].) We
    do so again here.
    In Bruton v. United States (1968) 
    391 U.S. 123
    , 127–128,
    137, as later limited by Richardson v. Marsh (1987) 
    481 U.S. 200
    , 208–209, the United States Supreme Court held that the
    admission into evidence at a joint trial of a nontestifying
    codefendant’s confession incriminating the defendant on its face
    violates the defendant’s right to cross-examination guaranteed
    by the confrontation clause, even if the jury is instructed to
    disregard the confession in determining the guilt or innocence
    of the defendant. We reached a similar conclusion in California
    three years before Bruton in People v. Aranda (1965) 
    63 Cal.2d 518
    . We have, however, held that “[t]o the extent that our
    decision” in People v. Aranda, regarding redaction or exclusion
    of the out-of-court confession of a defendant that implicates a
    codefendant, “constitutes a rule governing the admissibility of
    evidence, and to the extent this rule of evidence requires the
    exclusion of relevant evidence that need not be excluded under
    federal constitutional law, it was abrogated in 1982 by the
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    introduce portions of Silveria’s first penalty phase testimony for
    which Travis had been present and had the opportunity to cross-
    examine Silveria. (Evid. Code, § 1291, subd. (a); see ante, p. 87;
    People v. Stevens (2007) 
    41 Cal.4th 182
    , 199 [“The Sixth
    Amendment confrontation clause does not bar hearsay
    statements of a witness who testifies at trial and is subject to
    cross-examination”]; see Crawford v. Washington (2004) 
    541 U.S. 36
    , 59, fn. 9 (Crawford).) The court subsequently raised the
    issue that this former testimony might at times refer to
    Silveria’s excluded statement to police. After hearing argument
    by the parties, the court barred any reference to Silveria’s
    statement to police during the reading of the transcript of
    Silveria’s former testimony.
    In light of the court’s ruling barring any reference to
    Silveria’s statement to police during the prosecutor’s
    presentation of Silveria’s former testimony, and apparently to
    avoid opening the door to other portions of Silveria’s statement
    to police being admitted, Silveria withdrew his own pending
    motion to introduce Silveria’s statement to police. Silveria’s
    counsel asked that Silveria simply be permitted to ask Santa
    Clara Sergeant Ted Keech, who had interviewed Silveria after
    his arrest and would at that point need to be recalled as a
    witness, whether Silveria had admitted his participation in the
    LeeWards robbery and murder. The court ruled that Silveria
    would be permitted to ask this question, and also ruled that the
    prosecutor would be permitted to ask Sergeant Keech one
    question regarding whether Silveria had minimized his
    ‘truth-in-evidence’ provision of Proposition 8 (Cal. Const., art. I,
    § 28, subd. (d) [now § 28, subd. (f)(2)]).” (People v. Fletcher
    (1996) 
    13 Cal.4th 451
    , 465.)
    116
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    participation in the crime. Sergeant Keech was not recalled, and
    hence was not asked whether Silveria had admitted his
    participation in the LeeWards robbery and murder.
    There was no error. The record reveals that once the court
    had barred all reference to Silveria’s statement to police during
    the reading of Silveria’s former testimony, Silveria
    understandably sought to avoid opening the door to evidence of
    the damaging portions of his statement to police, such as
    inconsistencies between his statement and his former penalty
    phase testimony, and withdrew the motion to admit the
    statement. Moreover, Silveria received the opportunity to
    present the evidence he now claims was precluded. Thus, the
    trial court ruled that Silveria could ask Sergeant Keech, who
    had interviewed Silveria on the night of his arrest, whether
    Silveria had admitted his participation in the LeeWards robbery
    and murder. Silveria chose not to ask this question.
    For these same reasons we reject Silveria’s further
    arguments that exclusion of his statement to police was
    “fundamentally unfair under the Fourteenth Amendment,” and
    that denial of his penalty retrial severance motion erroneously
    precluded him from presenting mitigating evidence in his
    statement to police of his “early acknowledgement of guilt” and
    “expressions of remorse for the murder on the night of his
    arrest.” In his reply, Silveria asserts that during deliberations
    the jury asked to see his confession, demonstrating it “was
    important to the jury’s determination of penalty.”21 As can be
    seen, Silveria withdrew his motion to admit his statement to
    police, and failed to recall Sergeant Keech as a witness to ask
    21
    In the note, the jury requested “[a]ny police reports from
    his initial arrest — confession?”
    117
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    him whether Silveria had admitted his participation in the
    LeeWards robbery and murder.
    Moreover, even assuming for the sake of argument there
    was error, there was no reasonable possibility Silveria was
    prejudiced.        Silveria’s   introduction    of    his   early
    acknowledgement of guilt in his statement to police would have
    allowed the prosecutor to introduce the remainder of Silveria’s
    statement, including his initial repeated denials of involvement
    in Madden’s murder and inconsistencies between the statement
    and Silveria’s former testimony regarding his description of the
    murder. In addition, Silveria presented other evidence of his
    early acknowledgement of guilt. On direct examination at the
    penalty retrial, Sergeant Keech testified that after meeting
    Silveria (and his coperpetrators), he had received certain
    information that caused him to direct an officer to return to
    LeeWards to seize a gas can. On cross-examination by Silveria,
    Sergeant Keech testified that he had interviewed Silveria early
    on the morning of January 30, and agreed with defense counsel
    that it was during this interview that Sergeant Keech first
    learned of the significance of the gas can and where it was
    located.22 This indicates that Silveria had acknowledged
    involvement with the murder during the interview.
    Silveria also presented ample evidence of his remorse. His
    former testimony that was read to the jury at the penalty retrial
    recounted that Silveria did not believe causing Madden pain
    with the stun gun was “right,” and felt “horrible for doing it,”
    22
    In his first penalty phase testimony that was introduced
    at the penalty retrial, Silveria said the perpetrators brought a
    gas can to burn the store down, but Silveria decided it was not
    needed and the can was left outside near a trailer.
    118
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    that Silveria felt “sick” about participating in Madden’s murder,
    and “horrible” about the effect of the murder on Madden’s
    family. Silveria did not feel that anything that had happened
    to him in his life was an excuse for what he did on the night of
    Madden’s murder, but rather that he “should be held
    accountable for what [he] did,” and “deserve[d] whatever
    punishment [was] given to” him. In addition, Patricia Gamble
    testified that on several occasions Silveria said that he was
    sorry, was praying for the Madden family, and “knows how it
    feels to grow up without a father and that it hurt him to know
    that Julie [Madden’s daughter] now would not have a father to
    grow up with.” Morrella, Silveria’s former girlfriend, testified
    that Silveria said he felt “very bad about the fact that Julie,”
    Madden’s young daughter, “was going to grow up without a
    father,” that “he had been praying for the family and that he . . .
    felt terrible and that he was just continuously praying for them.
    He was very remorseful.” Correctional Officer Bergado recalled
    Silveria appearing distraught and explaining to the officer, “I’m
    just really . . . sad . . . for the family of the victim,” he was
    “asking for forgiveness and he’s sorry for what he did and he
    feels sorry for the family of his victim and his family.” Reverend
    Charon testified that he and Silveria periodically discussed
    Silveria’s remorse about Madden’s murder and Silveria’s
    concern for Madden’s wife and family. Thus, Silveria fails to
    demonstrate that denial of his severance motion or any assumed
    denial of his motion to introduce his statement to police
    precluded him from presenting “important mitigating evidence.”
    d. Spiritual evidence
    Silveria contends that the trial court erroneously excluded
    mitigating evidence of his interest in Christianity and the Bible.
    We reject the claim.
    119
    PEOPLE v. SILVERIA and TRAVIS
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    During the testimony of Julie Morrella, Silveria’s former
    girlfriend who visited him in jail after his arrest, the trial court
    sustained hearsay objections on several occasions when she
    recounted Silveria’s statements to her. Even assuming for the
    sake of argument that these rulings were erroneous or a
    “mechanistic” application of the hearsay rule, as Silveria
    asserts, he was not thereby precluded from introducing
    mitigating evidence of his interest in Christianity and the Bible.
    Rather, Morrella testified that at some point she and Silveria
    began to discuss Christianity, and these conversations occurred
    at least once a week over a period of time. Silveria was very
    excited about Christianity and animated during their religious
    discussions. He quoted scripture and began to bring the Bible
    and other Christian literature to their meetings. In Morrella’s
    view, Silveria responded “appropriate[ly]” when Morrella told
    him she was a Christian and that she had a “real sense of peace
    with the Lord by [her] side.” They discussed the relevance of the
    Bible today and the “ways that it could actively work in [their]
    lives,” including its relevance to Silveria’s life in jail.
    This testimony was similar to the excluded testimony that
    Silveria told Morrella “he was really excited because he had
    started reading the Bible, Silveria “mentioned that he was
    starting with the Old Testament,” Silveria said, “ ‘Gosh, I just
    read a really good book,’ ” and Morrella’s testimony, “[S]ince he
    started reading the Bible, he would bring in something” and “He
    would usually discuss with me what he had been reading, what
    he had been learning.” Thus, even assuming exclusion of these
    statements was erroneous, there is no reasonable possibility the
    penalty verdict would have been different had this testimony
    been admitted. (See People v. Brown, supra, 46 Cal.3d at p. 448.)
    120
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    e. Limitation on time period of Morrella’s
    testimony
    Silveria summarily contends the trial court erred in
    precluding Morrella from testifying regarding any jail visits to
    him between the end of the first penalty phase in February 1996
    and the time of her testimony at the penalty retrial in March
    1997 under Evidence Code section 1252.23 He does not identify
    when this ruling was made or note whether he objected to it. He
    simply quotes a sidebar discussion during Morrella’s testimony
    in which the trial court stated without objection: “I won’t
    tolerate any evidence or accept any evidence of visits between
    this witness and the defendant between February of ’96 and the
    present under 1252.” No prejudicial error is demonstrated.
    “Although defendant had a constitutional right to have the
    jury hear all mitigating evidence counseling against the death
    penalty, ‘a capital defendant has no federal constitutional right
    to the admission of evidence lacking trustworthiness,
    particularly when the defendant seeks to put his own self-
    serving statements before the jury without subjecting himself to
    cross-examination.’ ” (Peoples, supra, 62 Cal.4th at p. 757.)
    Thus, “statements by a defendant to a third party regarding the
    defendant’s state of mind can be admissible, but not when made
    under circumstances that indicate a lack of trustworthiness.
    (Evid. Code §§ 1250, 1252.)” (Ibid.)
    In Peoples, we held that the trial court could reasonably
    conclude the defendant’s hearsay statements of remorse made
    23
    Evidence Code section 1252 provides: “Evidence of a
    statement is inadmissible under this article if the statement was
    made under circumstances such as to indicate its lack of
    trustworthiness.”
    121
    PEOPLE v. SILVERIA and TRAVIS
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    to two pastors after the defendant’s attorneys had begun
    working on the case were unreliable. (Peoples, supra, 62 Cal.4th
    at pp. 755, 758.) Similarly here, the trial court could reasonably
    find that statements made by Silveria to Morrella while he
    awaited his penalty retrial were made under untrustworthy
    circumstances. Moreover, as can be seen, Morrella was
    permitted to testify regarding Silveria’s expressions of remorse
    and religious commitment made during a different period of his
    incarceration, hence any assumed error was harmless beyond a
    reasonable doubt.
    f. Letter to Morrella
    Silveria contends the trial court erroneously excluded
    mitigating evidence of a letter he wrote to Morrella expressing
    remorse about the capital crimes. We reject the claim.
    The letter does not meaningfully differ from Morrella’s
    testimony about Silveria’s statements of remorse. In the letter
    Silveria states: “I wrote the victim[’]s (Jim’s) family a letter
    expressing how [I] feel about the tragedy I’ve caused them. It
    was written from the heart and is how I feel. I just hope they
    are receptive when the[y] get it. Julie it was very hard for me
    to write it[.] But I wanted them to know that I’m not insensitive
    to their feelings.” Morrella testified that during their jail visits,
    Silveria told Morrella he felt “very bad about the fact that Julie,”
    Madden’s young daughter, “was going to grow up without a
    father.” Silveria told Morrella “he had been praying for the
    family and that he . . . felt terrible and that he was just
    continuously praying for them. He was very remorseful.” Given
    Morrella’s testimony, any assumed error in precluding
    admission of the letter from Silveria to Morrella was harmless
    beyond a reasonable doubt.
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    g. Letters to Munoz and the Madden family
    Silveria contends that the trial court erroneously excluded
    mitigating evidence contained in his letters to Elizabeth Munoz
    (the Heberts’ neighbor) and to the Madden family. We reject the
    claim.
    Silveria did not testify at the penalty retrial. Munoz
    identified a letter dated April 10, 1995 as one she had received
    from Silveria, but she was not asked to testify regarding its
    content. There was no testimony regarding the letter to the
    Madden family. Silveria attempted to show the Madden family
    letter to Reverend Charon during Travis’s penalty retrial
    defense case, but the trial court ruled he would need to recall
    Reverend Charon as a witness. Reverend Charon was not
    recalled. At the end of the penalty retrial, Silveria sought to
    have both letters admitted, and the court excluded them because
    they lacked foundation.
    Silveria contends that the trial court “knew full well” that
    Silveria had written the letters and had laid the foundation for
    their admission during the original penalty phase. Even if
    correct, Silveria was still required to lay a foundation for the
    letters at the penalty retrial. (See People v. Mattson (1990)
    
    50 Cal.3d 826
    , 849–850 [At a new trial, “[a]bsent a statutory
    provision precluding relitigation, a stipulation by the parties, or
    an order by the court that prior rulings made in the prior trial
    will be binding at the new trial, . . . the court must consider the
    admissibility of . . . evidence at the time it is offered”].) Silveria
    nonetheless asserts the trial court “relied upon a mechanistic
    application of the rules of evidence to prevent the jury from
    considering mitigating evidence of [Silveria’s] background, his
    123
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    shame, remorse, and request for forgiveness from the Madden
    family.”
    As to the Madden family letter, there is no name to whom
    the letter is written in the salutation, nor does Silveria use the
    names of Madden’s wife or daughter in the letter. Nor was there
    evidence that the letter was ever even mailed. In the letter,
    Silveria states that “one act of violence does not portray or even
    remotely describe how I’ve [b]een raised or the person I am
    today”; he prays for the family frequently; he’s “not insensitive
    to your family’s feelings and it’s very hard for me to think of a
    certain little girl growing up without a Dad — I do know how
    that feels”; he wants “you, your daughter, and loved ones to
    know that I’m at a loss for words when trying to describe how
    ashamed and saddened I feel now and every time I think of Jim
    and your family”; he would “welcome a life in prison over the
    misery I’ve caused you and both our families”; and he asks for
    their forgiveness.
    In the five-page Munoz letter, Silveria discusses a variety
    of topics. As to his spiritual life, he stated “the Father Jesus has
    done [immensely] more than make up for any pain and suffering
    that I may [have] gone through growing up”; that despite the
    “pain and suffering” that Silveria had caused others, “the Lord
    has given me the greatest gift of all, eternity with Him and a
    peace and joy now that is [inexpressible]”; recounted a line from
    a Christian song he liked; and noted two men whose sermons he
    enjoyed.
    There was no error. The letters lacked foundation and
    were inadmissible hearsay. Moreover, as noted, “[a]lthough
    defendant had a constitutional right to have the jury hear all
    mitigating evidence counseling against the death penalty, ‘a
    capital defendant has no federal constitutional right to the
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    admission of evidence lacking trustworthiness, particularly
    when the defendant seeks to put his own self-serving statements
    before the jury without subjecting himself to cross-
    examination.’ ” (Peoples, supra, 62 Cal.4th at p. 757.)
    In addition, any assumed error in excluding these letters
    was harmless beyond a reasonable doubt. As to the letter to
    Madden’s family, significant evidence of Silveria’s remorse and
    spirituality was presented at the penalty retrial. Evidence of
    remorse included Silveria’s first penalty phase testimony that
    after his arrest, he assisted Officer Hyland in apprehending
    Spencer and Jennings; that Silveria did not believe causing
    Madden pain with the stun gun was “right,” and felt “horrible
    for doing it”; that Silveria felt “sick” about participating in
    Madden’s murder, and “horrible” about the effect of the murder
    on Madden’s family; and Silveria did not feel that anything that
    had happened to him in his life was an excuse for what he did
    on the night of Madden’s murder, but rather that he “should be
    held accountable for what [he] did,” and “deserve[d] whatever
    punishment [was] given to” him. In addition, Morrella,
    Silveria’s former girlfriend, testified that Silveria said he felt
    “very bad about the fact that Julie,” Madden’s young daughter,
    “was going to grow up without a father,” that “he had been
    praying for the family and that he . . . felt terrible and that he
    was just continuously praying for them.              He was very
    remorseful.”
    As for Silveria’s spirituality in jail, the evidence included
    Reverend Charon’s testimony that it “would be very difficult” to
    feign the level of study and depth of interest Silveria had shown
    over the years in Christianity. Patricia Gamble testified that
    she and Silveria both studied the Bible and shared with each
    other what they had learned. Silveria exhibited “an excitement
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    PEOPLE v. SILVERIA and TRAVIS
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    and a real joy about what he was learning.” Morrella testified
    that Silveria was very excited about Christianity and animated
    during their religious discussions. Correctional Officer Bergado
    and Silveria had for several years discussed Christianity and
    lessons Silveria had learned from the Bible.
    h. Psychiatric expert
    Silveria contends that the trial court erred in limiting the
    testimony of Dr. Kormos, his psychiatric expert and thereby
    precluding evidence that would have demonstrated “how the
    neglect, deprivation and physical and sexual abuse [Silveria]
    suffered throughout his childhood affected his conduct on the
    day of the crimes,” how Silveria’s “relationship with co-appellant
    Travis, and the other co-defendants, affected [Silveria’s] conduct
    at the time of the crimes,” and how Silveria had positively
    developed in the six years since the crimes. He also claims that
    the trial court erred in allowing the prosecutor to ask
    Dr. Kormos about Madden’s murder. We reject the claim.
    (1) Factual background
    Dr. Kormos testified at the first penalty phase before only
    Silveria’s jury. At the joint penalty retrial, Dr. Kormos testified
    that he had relied in part on Silveria’s first penalty phase
    testimony in forming his opinion that Silveria suffered from a
    continuing condition of child neglect. Dr. Kormos’s testimony
    for that day ended.
    In hearings outside the jury’s presence, the question arose
    whether Dr. Kormos could rely on Silveria’s former testimony as
    a basis for his opinion given portions of this former testimony
    regarding Silveria’s childhood had not been admitted at the
    penalty retrial. The parties also broadly discussed whether the
    circumstance that Dr. Kormos had reviewed Silveria’s and
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    PEOPLE v. SILVERIA and TRAVIS
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    Travis’s statements to police — which had also been excluded at
    the penalty retrial — would give rise to Aranda/Bruton or
    confrontation clause issues for Travis (see ante, p. 115, fn. 20)
    and unduly limit his and the prosecutor’s cross-examination of
    Dr. Kormos because they could not cross-examine Dr. Kormos
    about the excluded statements to police. Silveria’s counsel,
    Mr. Geoffrey Braun, asserted he did not intend to ask
    Dr. Kormos about defendants’ statements to police and argued
    that there were no confrontation clause issues with the
    unadmitted portion of Silveria’s former testimony because none
    of his statements concerning “what [had] happened in his life”
    implicated Travis. The prosecutor disagreed, asserting that to
    properly cross-examine Dr. Kormos as to whether Silveria had
    an antisocial personality disorder rather than a condition of
    child neglect, he would need to point out inconsistencies Silveria
    had made in his former testimony and Silveria’s statement to
    police.
    The court expressed concern to Silveria that the
    prosecutor “cannot properly and fully cross-examine your
    witness, because he cannot get into the areas and some of the
    documents that your witness has considered” because of Travis’s
    “constitutional rights.” The trial court stated Silveria had two
    choices, i.e., to either have the court strike Dr. Kormos’s
    testimony from the previous day or to pause Dr. Kormos’s
    testimony until Silveria decided whether he would testify.24
    24
    If Silveria testified, Aranda/Bruton would not bar the jury
    from hearing evidence of Silveria’s statement to police that
    inculpated Travis because Travis could cross-examine him
    regarding it. (See Crawford, 
    supra,
     541 U.S. at p. 59, fn. 9
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    The prosecutor suggested as a compromise that
    Dr. Kormos make no reference to having considered the
    defendants’ statements to police, which again had not been
    admitted at the penalty retrial, and not discuss what Silveria
    had said about Travis, and that the prosecutor and Travis
    inquire “into inconsistencies without specifying that they came
    from a source the jury is not to know about.” The prosecutor
    acknowledged that “the People’s right of full cross-examination
    would be restricted, but so long as we are allowed the
    opportunity to develop from the witness that . . . there have been
    inconsistencies in what Silveria has related,” and Dr. Kormos
    was subject to recall, he was prepared to proceed.
    Silveria rejected this option.      The trial court stated
    Silveria had three options. He could (1) strike Dr. Kormos’s
    testimony, (2) give Silveria time to consider whether he would
    testify, or (3) agree to the prosecutor’s proposal.
    After the parties privately negotiated, they agreed to a
    fourth option that included the following terms. Dr. Kormos
    would not testify regarding Madden’s murder on either direct or
    cross-examination. Silveria had turned 21 years old on
    December 22, 1990, the month before Madden’s murder. To
    avoid recounting any statements about the January 1991 crime,
    Silveria’s counsel would limit any diagnosis by Dr. Kormos to
    information up to December 22, 1990 or Silveria’s 21st birthday.
    Silveria’s counsel stated: “I need not ask the doctor questions
    about his diagnosis of Mr. Silveria subsequent to the time of the
    [“[W]e reiterate that, when the declarant appears for cross-
    examination at trial, the Confrontation Clause places no
    constraints at all on the use of his prior testimonial
    statements”].)
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    crime, that is, during the time he was in jail.” The People would
    “be allowed to cross-examine regarding any possible differential
    diagnosis up to that same point in time based on the same
    information.” Dr. Kormos would be subject to recall. The
    parties agreed to this stipulation, and Dr. Kormos’s direct
    testimony resumed.
    The prosecutor reserved his cross-examination.          On
    redirect examination, Silveria asked Dr. Kormos whether he
    believed persons who had suffered about the same “degree of
    abuse that Mr. Silveria suffered according to what you know
    about his life, . . . would indeed suffer from severe psychiatric
    and psychological problems later in life.” Dr. Kormos replied:
    “Yes. I would estimate a solid majority.” Silveria also asked,
    “Would it include criminality?” Dr. Kormos replied, “It could
    very well include criminal behavior.” Silveria also asked
    Dr. Kormos whether “that kind of a background would impair
    Mr. Silveria’s, or anyone who has grown up with a similar
    background, ability to make rational choices later in life.”
    Dr. Kormos replied: “Yes. I think that there would likely be
    such distortions in his views of the world that his decisions are
    likely to be skewed.” He subsequently added, “I think their
    entire world view would be impaired, and that would certainly
    have an effect on all decisions they make.” At sidebar, the court
    indicated it did not “think anybody has gone beyond the
    agreement.” Silveria rested.
    After Travis testified and rested his defense case, the trial
    court allowed the prosecutor to recall and cross-examine
    Dr. Kormos limited to “what was brought up on direct
    examination” by Silveria and cross-examination by Travis. The
    prosecutor asked whether Dr. Kormos had spoken with Silveria
    “about the circumstances of the crime.” Silveria objected. At
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    PEOPLE v. SILVERIA and TRAVIS
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    sidebar, Silveria’s counsel asserted that “what Mr. Silveria may
    have said about the crime . . . creates insurmountable Sixth
    Amendment problems.” The court ruled that because Silveria
    had asked “later in life” questions, he had opened the door, and
    the prosecutor could explore, after laying an appropriate
    foundation, whether Silveria had been inconsistent in his
    statements regarding the circumstances of the crime.
    The prosecutor asked, “In formulating the opinions that
    you’ve testified about your assessment and diagnosis of Mr.
    Silveria would it be important to you if he lied to you . . . about
    aspects of how he committed this crime?” Dr. Kormos replied,
    “[I]t would be important to me to know whether Danny Silveria
    lied to me, but . . . I would also consider it important as to why
    he lied and how he lied.” The prosecutor subsequently said to
    Dr. Kormos that he would be asking him “in a moment about
    what Mr. Silveria told you that he did in a particular aspect of
    the commission of the crime,” and asked Dr. Kormos if he
    understood. Dr. Kormos said “Yes.” The prosecutor said he was
    not asking Dr. Kormos “about anything that [Silveria] said
    anyone else did,” and Dr. Kormos again said he understood. The
    prosecutor then asked, “What did Mr. Silveria tell you about his
    use of the stun gun on Jim Madden during the commission of
    this crime?” Dr. Kormos replied, “Danny told me that he had
    used the stun gun . . . on the victim while the crime was being
    committed,” and clarified that he had used the stun gun while
    the stabbing was being carried out. Dr. Kormos also agreed with
    the prosecutor he was aware of sworn testimony by Silveria in
    which he said he had “used the stun gun in some type of an effort
    to knock Mr. Madden out before any stabbing,” and replied,
    “[Y]es,” when asked if these two statements appeared to be
    inconsistent. The prosecutor then asked if that inconsistency,
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    and the fact that deceit and manipulation are central features
    of an antisocial personality disorder, caused Dr. Kormos to
    change his opinion that the best diagnosis of Silveria was child
    neglect rather than antisocial personality disorder. Dr. Kormos
    replied: “No. It would not change my opinion.”
    (2) Analysis
    As described above, the trial court sought (in light of
    confrontation clause concerns) to preclude statements by
    Silveria to law enforcement or to Dr. Kormos, or made in the
    unadmitted portion of Silveria’s first penalty phase testimony,
    that implicated Travis, and to assure adequate cross-
    examination by the prosecutor and Travis. Silveria asserts that
    the trial court erred in limiting Dr. Kormos’s testimony to the
    period before December 22, 1990, or Silveria’s 21st birthday.
    Silveria contends that this limitation was improper because
    there was no risk that Travis’s confrontation clause rights would
    be violated by testimony (1) explaining how the neglect and
    abuse Silveria suffered as a child, and his relationship with
    Travis and the other perpetrators, affected his conduct on the
    day of Madden’s murder, and (2) delineating Silveria’s positive
    development in the six years since the crime. He asserts, relying
    on People v. Sanchez (2016) 
    63 Cal.4th 665
     (Sanchez), that the
    trial court erred in not specifically considering Dr. Kormos’s
    proposed testimony and excluding “only those portions that
    would have ‘presented, as facts, the contents of the testimonial
    hearsay statements.’ ” 25
    25
    “Although the court in Crawford ‘did not offer an
    exhaustive definition of “testimonial” statements,’ the court has
    since clarified that ‘a statement cannot fall within the
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    Opinion of the Court by Groban, J.
    As described above, the record demonstrates that the
    parties broadly focused on finding a solution that would keep
    Dr. Kormos as a witness, allow Travis and the prosecutor
    adequate cross-examination, and avoid infringing on Travis’s
    Confrontation Clause unless its primary purpose was
    testimonial’ (Ohio v. Clark (2015) 576 U.S. ___, ___–___ [
    135 S.Ct. 2173
    , 2179–2180 [
    192 L.Ed.2d 306
    , 
    135 S.Ct. 2173
    , 2179–
    2180]]) — that is to say, unless the statements are given in the
    course of an interrogation or other conversation whose
    ‘ “primary purpose . . . is to establish or prove past events
    potentially relevant to later criminal prosecution.” ’ ” (Rangel,
    supra, 62 Cal.4th at p. 1214.) “Under this test, ‘[s]tatements
    made to someone who is not principally charged with uncovering
    and prosecuting criminal behavior are significantly less likely to
    be testimonial than statements given to law enforcement
    officers.’ ” (Ibid, quoting Ohio v. Clark, 
    supra,
     
    576 U.S. 237
    ,
    249.)
    In Sanchez, supra, 63 Cal.4th at page 686, this court held
    that an expert cannot “relate as true case-specific facts asserted
    in hearsay statements, unless they are independently proven by
    competent evidence or are covered by a hearsay exception.” (See
    People v. Powell (2018) 
    6 Cal.5th 136
    , 175, 177 (Powell) [trial
    court acted within its discretion in precluding the defendant’s
    psychologist from testifying at the penalty phase about the
    defendant’s self-serving statements to him that were offered for
    their truth].) “If the case is one in which a prosecution expert
    seeks to relate testimonial hearsay, there is a confrontation
    clause violation unless (1) there is a showing of unavailability
    and (2) the defendant had a prior opportunity for cross-
    examination, or forfeited that right by wrongdoing.” (Sanchez,
    at p. 686.) In Sanchez, we disapproved People v. Gardeley (1996)
    
    14 Cal.4th 605
    , which had been recently decided at the time of
    the March 1997 hearing below, “to the extent it suggested an
    expert may properly testify regarding case-specific out-of-court
    statements without satisfying hearsay rules.” (Sanchez, at
    p. 686, fn. 13.)
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    confrontational rights. Moreover, the trial in this case preceded
    the high court’s 2004 decision in Crawford, 
    supra,
     
    541 U.S. 36
    ,
    hence the parties did not use the term “testimonial.” For these
    reasons the trial court was not asked to rule on whether any
    specific statement by Silveria was testimonial, and therefore
    could not have erred in failing to do so.
    Silveria asserts that the prosecutor and Travis knew when
    Dr. Kormos testified at the first penalty phase that he had
    reviewed defendants’ statements to police, but at that time
    expressed no concern for Travis’s “rights,” or presumably
    Travis’s right not to be implicated by Silveria’s testimonial
    hearsay statements and his right to adequate cross-
    examination. (See ante, p. 131, fn. 25.) Dr. Kormos testified at
    the first penalty phase only before Silveria’s jury; Travis was not
    present. Given Travis’s absence, the prosecutor would not have
    had any reason to raise this issue.
    Silveria also asserts that Travis fully cross-examined
    Silveria at the first penalty phase, hence there could be no
    confrontation clause issue for Travis at the penalty retrial.
    Travis was present for and cross-examined Silveria regarding
    his testimony on the circumstances of the crime.26 However,
    26
    As noted, at the first penalty phase, Travis and Silveria
    had separate juries. As pertinent here, the trial court ruled that
    if Silveria or Travis testified, they would testify before both
    juries when discussing the circumstances of the crime. The
    court stated it was in “no position” to tell a defendant how to
    testify, and that if the testimony regarding the circumstances of
    the crime was not made a separate topic, “then both juries will
    have to be present for the entire testimony of the defendant.”
    Silveria structured his testimony so that his testimony about
    the crime was distinct from his testimony about other areas of
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    Travis was not present, and did not cross-examine Silveria
    regarding Silveria’s testimony about his childhood. Moreover,
    although Silveria asserts that Travis testified at the penalty
    retrial, this testimony occurred after the parties entered into the
    agreement regarding Dr. Kormos’s testimony.
    Silveria further asserts that the trial court’s “threats
    to . . . strike all of Dr. Kormos’s testimony” resulted in the
    exclusion of critical mitigating evidence. But Silveria’s counsel
    asserted below that he would “use Dr. Kormos as I primarily did
    last time . . . simply to establish the effects of the childhood
    traumas that Mr. Silveria suffered and how it affected the
    development of his personality up to a point short of the crime.”
    He also said, “I need not ask the doctor questions about his
    diagnosis of Mr. Silveria subsequent to the time of the crime,
    that is, during the time he was in jail.” There was no mention
    of counsel curtailing desired examination because of concern
    that the trial court had identified striking the testimony as one
    option. Although counsel later retreated on these statements
    when the court ruled that Silveria had opened the door to the
    prosecutor’s cross-examination, the parties and the court were
    entitled to rely on counsel’s earlier representations in
    formulating and approving the agreement.
    Nor, contrary to Silveria’s assertion here, were the
    limitations on Dr. Kormos’s testimony proposed by Silveria a
    result of the trial court’s reference to contempt. The court’s
    reference to contempt occurred 50 transcript pages before the
    parties reached the agreement regarding Dr. Kormos’s
    his life such as his childhood. Neither Travis nor his jury was
    present for this latter testimony, which was, of course, not
    relevant to Travis’s penalty determination.
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    testimony. The record indicates that when the trial court said
    Silveria’s counsel Mr. Braun was “close to contempt,” it was
    expressing frustration regarding counsel’s unwillingness to
    simply address an issue, frustration that may well have been
    compounded by a recently revealed discovery violation by
    counsel that had just been addressed during the same hearing.
    The record is not reasonably read as demonstrating that
    “because Judge Mullin threatened to . . . hold Braun in
    contempt . . . , Braun sought to salvage his defense case by
    proposing to confine his direct examination of Dr. Kormos from
    [Silveria’s] early childhood up to [Silveria’s] 21st birthday.”
    Moreover, any assumed error in accepting the parties’
    agreement to limit Dr. Kormos’s testimony was harmless
    beyond a reasonable doubt. Silveria asserts that the limitation
    precluded evidence that would have demonstrated “how the
    neglect, deprivation and physical and sexual abuse [Silveria]
    suffered throughout his childhood, and his “relationship with co-
    appellant Travis, and the other co-defendants,” affected
    Silveria’s “conduct at the time of the crimes,” and how Silveria
    had positively developed in the six years since the crimes. He
    also asserts that prejudice is demonstrated because the first
    penalty phase jury could not reach a verdict and deliberated for
    a lengthier period of time than the penalty retrial jury.
    At the penalty retrial, Dr. Kormos testified he was of the
    view that “there was an unusual accumulation of negative
    factors in this particular case, more than you would ordinarily
    see on the average.” He agreed with defense counsel that a
    person with Silveria’s background of failure to bond with either
    biological parent, and his experiences of neglect, abandonment,
    physical abuse, sexual abuse, and emotional abuse, would be
    impaired in his ability to make rational choices later in life,
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    Opinion of the Court by Groban, J.
    because “there would likely be such distortions in his views of
    the world that his decisions are likely to be skewed.” He
    subsequently added, “I think their entire world view would be
    impaired, and that would certainly have an effect on all
    decisions they make.” He also testified that a “solid majority” of
    persons who had suffered abuse similar to that suffered by
    Mr. Silveria “would indeed suffer from severe psychiatric and
    psychological problems,” including criminality, later in life.
    Dr. Kormos also opined that Silveria had “a very primitive, a
    very impaired way of dealing with reality” by trying to push out
    of his mind problems that occurred because he believed “there
    was . . . nothing that he could possibly do about it.” As to
    Silveria’s relationship with his coperpetrators, Dr. Kormos
    testified that Silveria, Travis, Spencer, and Jennings “were
    quite close,” and “important to each other,” “almost like they
    were trying to make up an artificial, a pseudo-family.” Thus,
    the jury could reasonably extrapolate from Dr. Kormos’s
    testimony a view of how Silveria’s childhood abuse and
    relationship with his coperpetrators affected his conduct on the
    day of the crime.
    Moreover, Silveria’s counsel asserted below that “I need
    not ask the doctor questions about his diagnosis of Mr. Silveria
    subsequent to the time of the crime, that is, during the time he
    was in jail.” Indeed, ample evidence was introduced regarding
    Silveria’s positive behavior in jail following the crime. As noted,
    several correctional officers, Silveria’s former girlfriend, one of
    his foster mothers, and Reverend Charon testified regarding
    Silveria’s spirituality and his remorse for the capital crime. One
    officer also testified that Silveria did not engage in physical
    altercations with other inmates, commit assaults on correctional
    staff, or display behavioral problems. He had not been caught
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    possessing weapons, drugs, or alcohol. Another officer testified
    that Silveria was intelligent, cooperative, and volunteered for
    additional jobs. He appeared to go out of his way to welcome
    new inmates, and at the officer’s request, had provided
    orientation for inmates new to the module. James Park, a
    former San Quentin associate warden, testified Silveria
    displayed a “positive and productive” outlook, had spent his jail
    time constructively by studying, and if he were to serve a
    sentence of life imprisonment without the possibility of parole,
    he would “make a good adjustment,” and would not be “a threat
    or a danger to other staff or other inmates.” (See ante, pp. 17–
    20, 23–24.)
    Thus, Silveria fails to demonstrate what significant
    mitigating evidence was excluded by the limitation on
    Dr. Kormos’s testimony, and hence also fails to demonstrate
    that there is a reasonable possibility that the penalty verdict
    would have been different had Dr. Kormos’s testimony not been
    limited. Nor, for this same reason, is prejudice demonstrated,
    by itself, because the first penalty phase jury hung, or because
    the penalty retrial jury deliberated for a shorter period of time
    than did Silveria’s first penalty jury. (See People v. Johnson
    (2015) 
    61 Cal.4th 734
    , 753 [“The length of jury deliberations in
    this two-homicide case, by itself, supports no conclusion as to
    the closeness of the case or as to any prejudicial effect of
    joinder”].)
    Silveria asserts that the trial court’s ruling that Silveria
    had opened the door to questions regarding a time after
    Silveria’s 21st birthday lacks support in the record and was
    contrary to the court’s earlier statement that it did not “think
    anybody has gone beyond the agreement.” It is admittedly
    unclear why the court changed its view of the record, but it had
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    discretion to later find, apparently after reviewing the written
    record, that asking “later in life” questions had in fact opened
    the door. Nor were the parties misled by the court’s earlier
    statement that it did not think the agreement had been violated
    because there was no testimony by Dr. Kormos after the court’s
    statement and before the prosecutor’s cross-examination.
    Silveria asserts that the trial court allowed the prosecutor
    “to cross-examine Dr. Kormos about [Silveria’s] conduct at the
    time of the crimes in a completely illegal and blatantly unfair
    attempt to show [Silveria] committed a torture-murder, after
    preventing [Silveria] from presenting evidence directly relating
    to the same time period to show mitigation.” The focus of the
    prosecutor’s line of inquiry was not whether Silveria had
    committed a torture murder, but rather whether because of
    Silveria’s inconsistent statements regarding when during the
    murder he used the stun gun, antisocial personality disorder
    was a more appropriate diagnosis than Dr. Kormos’s diagnosis
    of child neglect. Moreover, although the prosecutor was
    permitted to ask Dr. Kormos whether his opinion that child
    neglect was the most appropriate diagnosis would change in
    light of Silveria’s inconsistent statements as to when he used
    the stun gun against Madden, Dr. Kormos replied that this
    information would not change his opinion.
    Nor, contrary to Silveria’s assertion, did the prosecutor
    assert during closing argument that there “had been no evidence
    explaining how those risk factors could be expected to manifest
    and affect a person as an adult” or “exploit[] the fact that the
    defense had been precluded from presenting the very testimony
    that would have explained such a connection.” The prosecutor’s
    point in the challenged argument was that no one could know
    for certain why individuals with the same background turned
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    out differently, and that although Silveria had suffered a
    difficult childhood, he had found a reprieve in the Gambles’
    home, and then made his own choice to rob and kill.
    i. Fifth Amendment invocation
    Silveria contends the trial court erroneously denied his
    right to compulsory process and diluted relevant mitigating
    evidence when it ruled that his former foster parent Michael
    George had validly invoked his privilege against self-
    incrimination. We reject the claim.
    In December 1995, during the original penalty phase,
    Silveria testified that in about 1982, when he was about
    12 years old, he lived for nearly a year with then San Jose Police
    Officer Michael George and his family. On several occasions,
    George had sexually molested Silveria.
    During the 1997 penalty retrial, at a hearing outside the
    presence of the jury, Silveria sought to call George as a witness
    and asserted that the statute of limitations for the molestations
    had expired. Stuart Kirchick, George’s counsel, stated he had
    spoken with a San Jose police sergeant, “and he said all he could
    tell me was there was an open investigation” as to George and
    Silveria, and “[w]hether or not that matter is within the statute
    of limitations is still a decision that needs to be made.” For that
    reason, Kirchick had advised George to invoke his Fifth
    Amendment privilege.
    The prosecutor gave the court and counsel copies of a letter
    he had received that morning from a private attorney in a civil
    action pending against George. The letter stated that George
    had admitted molesting the attorney’s client when the client
    was 13 years old, and had been “sentenced to a 12 year term at
    San Quentin.” The attorney wanted to be present in court
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    should George testify in Silveria’s case. In response to the
    court’s inquiry, Kirchick said that George had suffered these
    convictions in Lake County and had served about 10 months of
    his sentence. George was called as a witness during the hearing,
    but refused to answer any questions about allegedly sexually
    molesting Silveria, and invoked his Fifth Amendment privilege
    against self-incrimination. The court ruled that George “has a
    legitimate right to claim the Fifth Amendment.”
    We review independently the trial court’s ruling that
    George was entitled to invoke his Fifth Amendment privilege to
    not incriminate himself. (People v. Seijas (2005) 
    36 Cal.4th 291
    ,
    304 (Seijas).) The Fifth Amendment privilege embraces not only
    “answers that would in themselves support a conviction,” but
    also those that “would furnish a link in the chain of evidence
    needed to prosecute the claimant for a . . . crime.” (Hoffman v.
    United States (1951) 
    341 U.S. 479
    , 486 (Hoffman); see People v.
    Cudjo (1993) 
    6 Cal.4th 585
    , 617 (Cudjo).) The privilege “must
    be accorded liberal construction in favor of the right it was
    intended to secure.” (Hoffman, at p. 486.) This protection is
    “confined to instances where the witness has reasonable cause
    to apprehend danger from a direct answer.” (Ibid.) “However,
    if the witness, upon interposing his claim, were required to
    prove the hazard in the sense in which a claim is usually
    required to be established in court, he would be compelled to
    surrender the very protection which the privilege is designed to
    guarantee. To sustain the privilege, it need only be evident from
    the implications of the question, in the setting in which it is
    asked, that a responsive answer to the question or an
    explanation of why it cannot be answered might be dangerous
    because injurious disclosure could result. The trial [court] in
    appraising the claim ‘must be governed as much by
    140
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    [its] personal perception of the peculiarities of the case as by the
    facts actually in evidence.’ ” (Id. at pp. 486–487.) It must be
    “ ‘perfectly clear, from a careful consideration of all the
    circumstances in the case, that the witness is mistaken, and
    that the answer[s] cannot possibly have such tendency’ to
    incriminate.” (Id. at p. 488.)
    Likewise, Evidence Code section 940 provides that “a
    person has a privilege to refuse to disclose any matter that may
    tend to incriminate him” to the extent that such a privilege
    exists under the state or federal Constitution. Evidence Code
    section 404, which we have stated is consistent with the federal
    Hoffman standard, provides: “Whenever the proffered evidence
    is claimed to be privileged under Section 940, the person
    claiming the privilege has the burden of showing that the
    proffered evidence might tend to incriminate him; and the
    proffered evidence is inadmissible unless it clearly appears to
    the court that the proffered evidence cannot possibly have a
    tendency to incriminate the person claiming the privilege.”
    (Evid. Code, § 404; see Cudjo, 
    supra,
     6 Cal.4th at p. 617.)
    At the time of the 1997 hearing in this case, section 803,
    former subdivision (g) (section 803(g)) permitted prosecution of
    child molestation “within one year of the time the victim
    report[ed] an independently corroborated crime to law
    enforcement officials. . . . [T]he new one-year limitations period
    applie[d] whether the crime occurred before or after
    section 803(g) became effective” and “without regard to whether
    the fixed statute of limitations for the crime ha[d] already
    expired, and had already expired, when section 803(g) took
    effect.” (People v. Frazer (1999) 
    21 Cal.4th 737
    , 742, see 
    id.
     at
    pp. 744–747.) In Frazer, this court held former section 803(g)
    was “not an ex post facto law.” (Frazer, at p. 765.) Frazer was
    141
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    abrogated in Stogner v. California (2003) 
    539 U.S. 607
    , 609–610
    [§ 803(g) is an ex post facto law because it authorized criminal
    prosecutions that the passage of time had previously barred,
    and was enacted after prior limitations periods for the
    defendant’s alleged offenses had expired].)
    Although section 803(g) was later found to be
    unconstitutional, at the time of the hearing below, George had
    “reasonable cause to apprehend danger from a direct answer.”
    (Hoffman, 
    supra,
     341 U.S. at p. 486; see Seijas, 
    supra,
    36 Cal.4th at p. 307 [“The Court of Appeal’s after-the-fact
    disagreement with the parties, even if ultimately correct as a
    matter of law . . . does not mean [the witness] did not reasonably
    apprehend danger at trial”].) Apparently based on Silveria’s
    testimony at the first penalty phase, the San Jose Police
    Department was investigating whether George had molested
    Silveria, and no decision had been made as to whether the
    statute of limitations had run. As the People assert, “George
    could reasonably have feared that existing state law . . . could
    expand the statute of limitations for his offenses or even revive
    them if they had expired.” Under these circumstances, it does
    not “clearly appear[]” that George’s testimony could not
    “possibly have a tendency to incriminate” him. (Evid. Code,
    § 404; see Hoffman, at p. 488.)
    In sum, the trial court did not err in ruling George was
    entitled to assert his Fifth Amendment privilege.
    6. Mistrial Motion
    Silveria contends the trial court erroneously denied his
    mistrial motion. We disagree.
    During Travis’s questioning of his defense expert witness
    Sharon Lutman, Travis’s counsel said: “I want to show you a
    142
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    picture here of something and see if we can talk about this for a
    minute. Do I need these marked for identification? I’m not
    going to attempt to enter these.” The trial court replied, “All
    right.” Counsel continued, “I’m going to show you a picture,
    Ms. Lutman, and maybe — is there a shelf on there?” The
    prosecutor interjected, “Your Honor, if counsel is going to refer
    to an item in the record and display it to the jury as per
    testimony about it and then it’s not marked and introduced into
    evidence, it does create a problem for the appellate court on
    review. I think that it’s necessary if he intends to publish them
    and to seek testimony about them to have them marked.” The
    court replied, “All right. Let’s mark them then.”
    Silveria then asked to “approach the bench on a
    procedural matter based on what [the prosecutor] just said.” At
    sidebar, Silveria unsuccessfully moved for a mistrial. He then
    requested the court admonish the jury ultimately requesting
    that it be told: (1) “the reason the matter [was] being retried has
    nothing to do with any appeal that occurred and, in fact, no
    appeal has ever taken place in this case,” (2) the “reason why
    the matter was tried once in 1995 and why the penalty phase is
    being retried at this time,” (3) the jury was to “disregard” what
    the prosecutor said, and that it was “not to consider whether or
    not this matter will ever be appealed or what the result of any
    such appeal might ever be,” and (4) that the jury is “indeed the
    last word . . . on the subject, that [it was] not to assume that
    there will be any appeal or any subsequent intervention by an
    appellate court and that the decision [it makes] is in fact what
    will happen to Mr. Silveria and Mr. Travis.”
    The court twice admonished the prosecutor at sidebar,
    “You didn’t need to talk about the appellate court.” It declined
    to admonish the jury, stating: “Based upon the Court’s view of
    143
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    the jury, the lack of any reaction by the jury and simple common
    sense this Court will not admonish the jury regarding the use of
    the term ‘appellate court’ ” because “[t]o do so would only
    highlight the term.”
    “ ‘A mistrial should be granted if the court is apprised of
    prejudice that it judges incurable by admonition or instruction.
    [Citation.]    Whether a particular incident is incurably
    prejudicial is by its nature a speculative matter, and the trial
    court is vested with considerable discretion in ruling on mistrial
    motions. [Citation.]’ [Citation.] A motion for a mistrial should
    be granted when ‘ “ ‘a [defendant’s] chances of receiving a fair
    trial have been irreparably damaged.’ ” ’ ” (People v. Collins
    (2010) 
    49 Cal.4th 175
    , 198 (Collins).)
    Here, the prosecutor’s statement was not “so incurably
    prejudicial that a new trial was required.” (People v. Ledesma
    (2006) 
    39 Cal.4th 641
    , 683 (Ledesma).) His reference to the
    appellate process was brief and isolated, did not refer to the
    circumstance that Silveria and Travis were being retried, and
    was directed not to the jury, but to the court in the midst of a
    technical discussion about whether an exhibit should be
    marked.
    Nor, contrary to Silveria’s assertion, did the prosecutor’s
    reference constitute Caldwell error. (Caldwell v. Mississippi
    (1985) 
    472 U.S. 320
    , 328–329 (Caldwell) [“it is constitutionally
    impermissible to rest a death sentence on a determination made
    by a sentencer who has been led to believe that the responsibility
    for determining the appropriateness of the defendant’s death
    rests elsewhere”].) There is no reasonable likelihood the jury
    understood the brief comment — which again did not occur
    during argument to the jury but during an evidentiary
    discussion with the court as to whether an exhibit should be
    144
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    marked — as lessening its sentencing responsibility. (See
    People v. Moon (2005) 
    37 Cal.4th 1
    , 18 [“Certainly the mere
    mention of the appellate process, while ill-advised, does not —
    standing alone — necessarily constitute reversible Caldwell
    error”].) Moreover, the trial court instructed the jury at the end
    of the penalty retrial: “Under the law of this state, you must
    now determine which of these penalties shall be imposed on each
    defendant. In determining what penalty is appropriate in this
    case, you must assume that whichever of the two penalties you
    impose will be carried out. That is: If you impose life without
    the possibility of parole, you must assume that the defendant
    will spend the rest of his life in prison and will never be released.
    If you impose death, you must assume that the defendant will
    be executed.” The brevity and context of the prosecutor’s
    comment, together with the court’s instructions at the end of the
    penalty retrial, “convince[] us the jury could not reasonably have
    understood the [prosecutor] to mean the jury’s verdict was
    advisory only.” (Moon, at p. 18.)
    The trial court also acted within its discretion in declining
    to admonish the jury when the prosecutor’s comment was made.
    The court was reasonably concerned that an admonition would
    unnecessarily highlight the reference to the appellate process.
    Silveria also challenges the prosecutor’s closing argument
    statement that if the jury decided it was appropriate to impose
    the death penalty, “this is not something that you or we as a
    system are doing to these men. This is something that each of
    these two defendants has brought upon himself.” Silveria
    claims this statement exploited both the prosecutor’s error in
    earlier referring to the appellate process, and the trial court’s
    “failure to remedy that error.” The prosecutor merely reminded
    the jury that the defendants’ own actions had created a situation
    145
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    in which a jury was choosing between penalties of life
    imprisonment without the possibility of parole and death.
    Nothing in these statements misled the jury “ ‘as to its role in
    the sentencing process in a way that allow[ed] the jury to feel
    less responsible than it should for the sentencing decision.’ ”
    (Romano v. Oklahoma, supra, 512 U.S. at p. 9.)
    7. Claims Regarding Sympathy and Mercy
    a. Mercy instruction and argument
    Silveria and Travis contend that the trial court
    prejudicially erred in ordering counsel to tell their witnesses not
    to use the word “mercy,” precluding either side from using the
    word “mercy” during closing argument, and refusing to instruct
    the jury “on mercy or a juror’s use of mercy.” We conclude there
    was no error. Based on the trial court’s instructions and
    counsels’ argument, “there is no reasonable likelihood the jury
    was misled as to its ability to grant” defendants leniency based
    on the mitigating evidence by the trial court’s preclusion of the
    word “mercy.” (People v. Ervine (2009) 
    47 Cal.4th 745
    , 802
    (Ervine).)
    (1) Factual background
    Before the penalty retrial, Silveria, joined by Travis,
    sought to “argue mercy.” In a lengthy ruling, the trial court
    denied Silveria’s motion. It noted that “mercy,” as defined in the
    dictionary, “implies compassion that forebears punishing even
    when justice demands it.” The court stated: “The idea of mercy
    falls, if at all, under Factor (k) of Penal Code Section 190.3,” but
    “[m]ercy is not a circumstance which . . . extenuates the gravity
    of the crime. It is forgiveness and forbearance of warranted
    punishment. The jury’s job is not to forgive. The jury’s job is to
    punish with either death or life without parole.”
    146
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    The court stated it would instruct the jury in the language
    of CALJIC No. 8.85, factor (k), but that “[m]ercy is not a
    sympathetic or other aspect of the defendant’s character or
    record. There is sympathetic evidence and the jury should
    consider that evidence.            The defendant’s upbringing,
    background and life experiences, good and bad, are to be
    considered when . . . evidence of them is presented.”
    The court also noted that the United States Supreme
    Court      had     held:     “ ‘[S]entencers     may      not    be
    given unbridled discretion in determining the fates of those
    charged with capital offenses.         The Constitution instead
    requires that death penalty statutes be structured so as to
    prevent the penalty from being administered in an arbitrary and
    unpredictable fashion.’ ” (California v. Brown (1987) 
    479 U.S. 538
    , 541.) The trial court observed, “To permit the defense to
    argue mercy would allow the jury to engage in the exact type of
    decision-making that the United States Supreme Court
    condemned.” “Granting mercy would seem to grant an unduly
    lenient sentence — one not based on the evidence presented.”
    At the end of the penalty retrial, the trial court instructed
    the jury in the language of CALJIC No. 8.85, factor (k), directing
    the jury to consider “[a]ny other circumstance which extenuates
    the gravity of the crime even though it is not a legal excuse for
    the crime and any sympathetic or other aspect of the defendant’s
    character or record that the defendant offers as a basis for a
    sentence less than death, whether or not related to the offense
    for which he is on trial.” The court also instructed the jury: “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. . . . [I]t is not necessary that all twelve
    jurors unanimously agree upon the existence or truth of any . . .
    147
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    particular mitigating circumstance. Rather, each juror is
    entitled to weigh and consider any . . . mitigating circumstance
    which he or she finds to be true in arriving at a penalty verdict.”
    The court defined a “mitigating circumstance” as “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.”
    (2) Analysis
    We have previously held that a trial court does not err in
    directing the parties to refer to “sympathy, pity, or compassion
    instead of mercy” in argument. (Ervine, supra, 47 Cal.4th at
    p. 802.) When based on the trial evidence, counsel’s use of any
    of these terms — mercy, sympathy pity, or compassion — during
    argument properly requests leniency from the jury. (Ibid.
    [“ ‘mercy’ and ‘compassion’ are synonymous” in the context of the
    penalty phase jury instructions]; People v. Boyce (2014)
    
    59 Cal.4th 672
    , 707 (Boyce) [“the court did not foreclose defense
    counsel from urging the jury to show sympathy and mercy to
    defendant”]; People v. Seaton (2001) 
    26 Cal.4th 598
    , 685
    (Seaton) [defense counsel’s argument that the jury could
    consider “ ‘mercy, sentiment, and sympathy for the defendant’ ”
    informed the jury “it could consider sympathy”]; People v.
    Andrews (1989) 
    49 Cal.3d 200
    , 228 (Andrews) [relying in part on
    the prosecutor’s argument acknowledging that the jury could
    consider “compassion” to conclude “the jury was not
    misinformed regarding its power to exercise mercy”].) The trial
    court’s direction in this case permitted the parties to use various
    terms that conveyed the jury’s latitude in considering the
    evidence and making the profoundly personal and normative
    penalty decision. (See Kansas v. Carr, 
    supra,
     577 U.S. at p. __
    148
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    [136 S.Ct. at p. 642] [“In the last analysis, jurors will
    accord mercy if they deem it appropriate, and withhold mercy if
    they do not, which is what our case law is designed to achieve”].)
    We have also observed that the word “mercy,” when not
    based on the trial evidence, may invite a purely subjective
    rather than a reasoned moral response. (See People v. McPeters
    (1992) 
    2 Cal.4th 1148
    , 1195 [the “unadorned use of the word
    ‘mercy’ implies an arbitrary or capricious exercise of power
    rather than reasoned discretion based on particular facts and
    circumstances” (italics added)]; Boyce, supra, 59 Cal.4th at
    p. 707 [same]; People v. Lewis (2001) 
    26 Cal.4th 334
    , 393 [same];
    see also Rhoades, supra, 8 Cal.5th at p. 452 [“We have held . . .
    that an express reference to ‘mercy’ risks encouraging arbitrary
    decisionmaking”].) We have also said, relying on McPeters, that
    the word mercy “connote[s] an emotional response to the
    mitigating evidence instead of a reasoned moral response.”
    (Ervine, 
    supra,
     47 Cal.4th at p. 802; see People v. Henriquez
    (2017) 
    4 Cal.5th 1
    , 43–44 [same].) Nonetheless leniency toward
    the defendant is properly considered at the penalty phase.
    (Kansas v. Carr, 
    supra,
     577 U.S. at p. __ [136 S.Ct. at p. 642];
    People v. Robertson (1982) 
    33 Cal.3d 21
    , 57 [“in the penalty
    phase of a capital trial the jury may properly consider sympathy
    or pity for the defendant in determining whether to show mercy
    and spare the defendant from execution”].) We clarify here that
    so long as attorneys base their penalty arguments on the trial
    evidence, it is not improper for them to use the word “mercy” or
    its synonyms in argument.
    Here, although all counsel were precluded from using the
    word “mercy,” “there was no suggestion in the arguments of
    either party that the jury could not consider mercy in
    determining penalty.” (Andrews, supra, 49 Cal.3d at p. 227.)
    149
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    The prosecutor argued: “Now when . . . [Silveria defense
    counsel] Mr. Braun or Ms. Angel ask you for your sympathetic
    consideration, for charity for Mr. Silveria given his life and his
    childhood and his foster homes and the abuse that he suffered,
    physical and sexual, as he will as no doubt will she, when [Travis
    defense counsel] Mr. Leininger asks you to find room in your
    heart to consider the sympathetic aspects under [CALJIC
    No. 8.85,] [f]actor (k) of his client’s background and childhood,
    his substance abuse, his chemical addiction,” look at Madden’s
    bloody shirt and “remember the man who was wearing it.”
    Silveria’s counsel urged the jury that “[W]hat [f]actor (k)
    takes into account is the entire life of a particular defendant,
    and in this case the entire life of my client, Danny Silveria, [is]
    to be measured against what he did on that one terrible night.”
    “[T]he law requires you not to just look at the crime. It requires
    you to weigh and consider who Danny Silveria was, how Danny
    Silveria became as he is now and who Danny Silveria is now.”
    Counsel asserted that based on the mitigating evidence, “Danny
    is a worthwhile human being, . . . he is a person worth saving,”
    he is “more than the worst thing he ever did.” Counsel argued,
    “just as there has been sin so too there can be redemption,”
    suggested “[w]e can have compassion enough for everybody in
    this case,” and asked the jury “to spare Danny’s life.” Travis’s
    counsel asserted: “What I’m asking you to do is look within
    yourself to discover whether there are any feelings of sympathy
    or compassion for the boy . . . who suffered, the boy whose anger
    was kindled by shame, fanned by countless humiliations, by a
    cruel masochistic sexual predator, the boy who experienced all
    of these things without the protection of family, social agencies
    or even one good friend . . . .” Counsel told the jury, “I’d like to
    see you live with the peace that comes not from vengeance, not
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    from anger, not from destruction of human life, but from the
    forbearance of imposing death.” Hence defense counsel were
    accorded broad latitude in marshalling the mitigating evidence
    and attempting to persuade the jury that this evidence
    warranted a sympathetic response, and were not meaningfully
    limited in this effort by preclusion of the word “mercy.”
    In addition, “ ‘a jury told it may sympathetically consider
    all mitigating evidence need not also be expressly instructed it
    may exercise ‘mercy.’ ” (People v. Bolin (1998) 
    18 Cal.4th 297
    ,
    344; see People v. Brasure (2008) 
    42 Cal.4th 1037
    , 1069–1070
    [“To the extent the proposed instructions told the jurors they
    were free to consider ‘mercy, sympathy and/or sentiment’ . . . or
    ‘compassion or sympathy’ . . ., they were essentially duplicative
    of CALJIC No. 8.85, which told jurors that under section 190.3,
    factor (k) they could consider ‘any sympathetic or other aspect
    of the defendant’s character or record that the defendant offers
    as a basis for a sentence less than death’ ”]; People v. Brown
    (2003) 
    31 Cal.4th 518
    , 570 [“Because defendant’s jury had been
    instructed in the language of section 190.3, factor (k), we must
    assume the jury already understood it could consider mercy and
    compassion; accordingly, the trial court did not err in refusing
    the proposed mercy instruction”].)
    Here, the trial court instructed the jury in the language of
    CALJIC No. 8.85. “As we have previously explained, CALJIC
    No. 8.85 adequately instructs the jury concerning the
    circumstances that may be considered in mitigation, including
    sympathy and mercy. [Citation.] We therefore ‘must assume
    the jury already understood it could consider mercy and
    compassion.’ ” (Ervine, supra, 47 Cal.4th at p. 801.) The court’s
    additional instructions also informed the jury of its latitude to
    consider sympathetic and extenuating evidence at trial in
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    determining penalty. The mere exclusion of the word “mercy”
    did not undercut these instructions.
    In sum, “there is no reasonable likelihood the jury was
    misled as to its ability to grant” defendants leniency based on
    the mitigating evidence by the trial court’s preclusion of the
    word “mercy.” (Ervine, supra, 47 Cal.4th at p. 802.)
    Silveria and Travis note that the prosecutor violated the
    trial court’s order during opening statements when he said
    Madden had struggled against “the tightly-wrapped duct tape
    that so mercilessly bound him.” There was no contemporaneous
    objection, but during a recess later that day Travis, joined by
    Silveria, sought a mistrial, or in the alternative, for all counsel
    to be permitted to use the word “mercy.” The trial court accepted
    defense counsels’ representation that the prosecutor had used
    the word “mercilessly,” denied the motions, and said, “Any
    further violation of the Court’s original order will be dealt with
    severely.” The prosecutor asked to “speak in regards to that,”
    and the trial court responded: “No. We’re done.”
    Defendants do not delineate how the trial court erred in
    denying the motions. As noted, “ ‘[a] mistrial should be granted
    if the court is apprised of prejudice that it judges incurable by
    admonition or instruction. [Citation.] Whether a particular
    incident is incurably prejudicial is by its nature a speculative
    matter, and the trial court is vested with considerable discretion
    in ruling on mistrial motions. [Citation.]’ [Citation.] A motion
    for a mistrial should be granted when ‘ “ ‘a [defendant’s] chances
    of receiving a fair trial have been irreparably damaged.’ ” ’ ”
    (Collins, 
    supra,
     49 Cal.4th at p. 198; see ante, pt. II.B.6.)
    Here, the prosecutor’s single use of the word “merciless”
    was not “so incurably prejudicial that a new trial was required.”
    (Ledesma, 
    supra,
     39 Cal.4th at p. 683.) In his reply brief,
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    Opinion of the Court by Groban, J.
    Silveria cites the trial court’s ruling as “further demonstrat[ion]
    to the jury the extent to which the judge leaned on the
    prosecution’s side of the scale.” But neither the objection nor the
    ruling were made before the jury, nor was the prosecutor even
    permitted to defend his asserted violation. Rather, the trial
    court accepted defense counsels’ representation of what had
    occurred and reprimanded the prosecutor. These circumstances
    fail to demonstrate judicial bias favoring the prosecution.
    b. CALJIC No. 1.00
    Silveria contends that the trial court prejudicially erred by
    instructing some potential jurors before trial in the language of
    CALJIC No. 1.00. We reject the claim.
    In December 1996, during jury selection for the penalty
    retrial, the court instructed certain prospective jurors in the
    language of CALJIC No. 1.00: “You must not be influenced by
    pity for a defendant or by prejudice against him. . . . Both the
    defendants and the People have the right to expect that you will
    conscientiously consider and weigh the evidence, apply the law
    and reach a just verdict regardless of the consequences.” The
    instruction was not repeated in the court’s April 1997
    instructions to the jury at the end of the penalty retrial.
    “We have repeatedly explained that this instruction
    should not be given at the penalty phase because the
    ‘ “consequences” ’ at the penalty phase — the choice between
    death and life imprisonment without the possibility of parole —
    ‘are precisely the issue that the jury must decide.’ ” (Erskine,
    supra, 7 Cal.5th at p. 302; People v. Ray (1996) 
    13 Cal.4th 313
    ,
    354 (Ray) [“language instructing the jury to disregard the
    consequences of its verdict is inappropriate and should not be
    given at the penalty phase” (italics omitted)].) Moreover, it is
    153
    PEOPLE v. SILVERIA and TRAVIS
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    erroneous to instruct a penalty phase jury not to be influenced
    by pity or sympathy for the defendant. (Seaton, 
    supra,
    26 Cal.4th at pp. 684–685.)
    We conclude there is no reasonable likelihood that the
    court’s error misled the jury. (See People v. Mitchell (2019)
    
    7 Cal.5th 561
    , 579 [“In reviewing a claim of instructional error,
    the court must consider whether there is a reasonable likelihood
    that the trial court’s instructions caused the jury to misapply
    the law in violation of the Constitution.”].) Here instruction in
    the language of CALJIC No. 1.00 was given to only some
    potential jurors before the penalty retrial, and was not repeated
    four months later at its conclusion. Rather, at the end of the
    penalty retrial, the court instructed the jury that it must
    “determine which of these penalties” — death or life
    imprisonment without the possibility of parole — “shall be
    imposed on each defendant,” and that in making this
    determination it “must assume that whichever of the two
    penalties you impose will be carried out.” It further instructed
    the jury: “Both the People and each defendant have a right to
    expect that you will conscientiously consider all of the evidence,
    follow the law and reach a just verdict.”
    Moreover, as noted, the trial court instructed the jury to
    consider “[a]ny other circumstance which extenuates the gravity
    of the crime even though it is not a legal excuse for the crime
    and any sympathetic or other aspect of the defendant’s
    character or record that the defendant offers as a basis for a
    sentence less than death, whether or not related to the offense
    for which he is on trial.” The court also instructed the jury: “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. . . . [I]t is not necessary that all twelve
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    PEOPLE v. SILVERIA and TRAVIS
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    jurors unanimously agree upon the existence or truth of any . . .
    particular mitigating circumstance. Rather, each juror is
    entitled to weigh and consider any . . . mitigating circumstance
    which he or she finds to be true in arriving at a penalty verdict.”
    The court defined a “mitigating circumstance” as “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.”
    Given these instructions at the end of the penalty retrial,
    there is no reasonable likelihood that the jurors who may have
    heard the challenged language at the outset of trial failed to
    understand that they “bore the ultimate responsibility for
    choosing between death and life imprisonment without parole”
    (Ray, 
    supra,
     13 Cal.4th at p. 355), and that they could consider
    pity and sympathy for the defendants.
    8. Asserted Prosecutorial Misconduct
    Silveria and Travis assert that the prosecutor committed
    prejudicial misconduct. We reject the claim.
    “A prosecutor commits misconduct when his or her
    conduct either infects the trial with such unfairness as to render
    the subsequent conviction a denial of due process, or involves
    deceptive or reprehensible methods employed to persuade the
    trier of fact.” (People v. Avila (2009) 
    46 Cal.4th 680
    , 711.) “As a
    general rule a defendant may not complain on appeal of
    prosecutorial misconduct unless in a timely fashion — and on
    the same ground — the defendant made an assignment of
    misconduct and requested that the jury be admonished to
    disregard the impropriety.”          (People v. Samayoa (1997)
    
    15 Cal.4th 795
    , 841 (Samayoa).)            “When attacking the
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    prosecutor’s remarks to the jury, the defendant must show” that
    in the context of the whole argument and the instructions there
    was “ ‘a reasonable likelihood the jury understood or applied the
    complained-of comments in an improper or erroneous manner.’ ”
    (People v. Centeno (2014) 
    60 Cal.4th 659
    , 667.)
    Travis, joined by Silveria, contends the prosecutor
    committed misconduct during closing argument by referring to
    CALJIC No. 8.85, factor (k) evidence as “a kitchen sink.” During
    closing argument, the prosecutor asserted that Silveria’s
    counsel “will urge you to consider and be swayed by [f]actor (k)
    evidence, which you will see is sort of like a kitchen sink
    category of — ” Both defendants unsuccessfully objected to the
    term “kitchen sink.” The prosecutor read the language of the
    instruction on factor (k), and explained that the factor was “an
    all-encompassing category . . . of, in effect, sympathetic evidence
    as to” the defendants. In the prosecutor’s rebuttal argument, he
    stated: “Factor (k), that’s basically, I submit, all of the penalty
    phase evidence that has been offered on behalf of both
    Mr. Travis and Mr. Silveria by their respective attorneys.
    Factor (k), which I refer[] to as a kitchen sink, meaning by that
    an all-encompassing category.” He explained: “Basically it is a
    catch-all category put in by statute for the defendant’s benefit in
    a capital case. Factor (k) allows you to consider any sympathetic
    aspect of” Mr. Travis’s and Mr. Silveria’s “character or record as
    a basis for a sentence less than death.”
    We conclude any assumed misconduct in using the term
    “kitchen sink” to describe the CALJIC No. 8.85, factor (k)
    evidence was harmless beyond a reasonable doubt. The
    language of factor (k), which informs the jury that it may
    consider “[a]ny other circumstance which extenuates the gravity
    of the crime even though it is not a legal excuse for the crime
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    PEOPLE v. SILVERIA and TRAVIS
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    and any sympathetic or other aspect of the defendant’s
    character or record that the defendant offers as a basis for a
    sentence less than death, whether or not related to the offense
    for which he is on trial,” describes a broad range of evidence.
    The prosecutor also referred to factor (k) as an “all-
    encompassing” or “catch-all” category of defendants’
    sympathetic evidence. In light of this, and contrary to Travis’s
    assertion, the prosecutor’s characterization of this evidence did
    not send “a clear message that any factor (k) evidence was not
    to be taken seriously” or constitute prejudicial misconduct.
    Silveria and Travis also contend that the prosecutor
    committed misconduct by urging the jury to rely on
    Dr. Pakdaman’s opinion that “[t]his is one of the most atrocious
    cases that I have ever seen,” and thus shifted responsibility for
    the penalty decision to Dr. Pakdaman in violation of Caldwell.27
    (Caldwell, supra, 472 U.S. at pp. 328–329; see ante, pt. II.B.4.b.)
    We have concluded above that even assuming the pathologist’s
    statement was inadmissible, it was harmless beyond a
    reasonable doubt because it was brief and isolated, and less
    compelling than Dr. Pakdaman’s detailed description of
    Madden’s 32 “slash-like superficial cuts” and “stab-like wounds”
    in his neck, chest, and abdomen, including stab wounds that
    penetrated his heart and fractured his ribs, and
    Dr. Stratbucker’s testimony that marks made by the stun gun
    on Madden’s thigh were inflicted while he was alive, and that
    Madden remained conscious “to the bitter end.” (See ante,
    pt. II.B.4.b.).
    27
    Caldwell error claims are not forfeited on appeal for
    failure to object below if the trial, as here, occurred before our
    decision in People v. Cleveland (2004) 
    32 Cal.4th 704
    , 761–762.
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    Nor did the prosecutor’s recounting of Dr. Pakdaman’s
    statement during closing argument mislead the jury “ ‘as to its
    role in the sentencing process in a way that allow[ed] the jury to
    feel less responsible than it should for the sentencing decision.’ ”
    (Romano v. Oklahoma, supra, 512 U.S. at p. 9.) The prosecutor
    recounted Dr. Pakdaman’s testimony regarding the number and
    type of stab wounds Madden had suffered. He showed the jury
    crime scene and autopsy photographs, asked the jury to consider
    Madden’s bloody shirt, and noted Dr. Pakdaman’s testimony
    that it took Madden between 10 and 30 minutes to die, and that
    he was alive at the end of the attack. The prosecutor asked,
    “What is morally compelling about this case?” He noted
    Dr. Pakdaman had performed thousands of autopsies, could not
    recall all of them, but remembered this case because, “This is
    one of the most atrocious cases that I have ever seen.” The
    prosecutor described Dr. Pakdaman as “visibly emotional”
    during this exchange.          After discussing Dr. Pakdaman’s
    testimony, the prosecutor argued that the “callousness and
    horror of this case, of this murder is beyond all human
    comprehension.” He then argued Travis had enjoyed the
    murder, and discussed the Tex Watson letter and Travis’s
    statements to police. After a recess, the prosecutor told the jury
    he wanted to “be absolutely clear” that the jury’s moral
    evaluation was not mechanical or a mere counting of factors, but
    an “individual assessment[] as to what is morally compelling
    and your assignment of whatever moral weight you feel you
    should give to each of these various factors that the law allows
    you to consider.” In this context nothing in the prosecutor’s
    recounting of Dr. Pakdaman’s statement regarding the relative
    atrocity of the case shifted responsibility for the penalty decision
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    PEOPLE v. SILVERIA and TRAVIS
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    from the jury to Dr. Pakdaman in violation of Caldwell.
    (Caldwell, 
    supra,
     472 U.S. at pp. 328–329.)
    9. Additional Claims Regarding the Prosecutor’s
    Conduct
    Silveria contends the trial court erred when it permitted
    the prosecutor to elicit certain testimony and Silveria and
    Travis contend the court erred in allowing the prosecutor to
    make certain statements during closing argument. We reject
    these claims.
    a. Sissy Madden’s testimony
    Silveria contends the trial court erred in allowing the
    prosecutor to elicit testimony from Sissy Madden that delays in
    the trial are torture to her, that she has no peace, and that all
    she wants is justice for her husband’s death. He contends that
    the effect of trial delays on Sissy were “too remote from any act
    of [Silveria] to be relevant to his moral culpability,” that Sissy’s
    testimony was so unduly prejudicial it rendered the penalty
    retrial fundamentally unfair, and that Sissy’s “request for
    justice for her husband’s murder violated the Eighth
    Amendment because it essentially told the jury” she believed
    “death was the appropriate sentence.” We reject the claim.
    During Sissy’s direct testimony, the prosecutor asked her
    how she had been affected by her testimony being rescheduled
    to that day from the day before. She replied: “[I]t was horrible.
    This . . . is so hard for me to do, because I’m in a room full of
    strangers, talking to you about something that’s very intimate
    to me: My relationship with my husband. I feel like — every
    time that this gets put off it feels like — I don’t know that you
    can understand, but it feels like a little bit of torture to me. . . . I
    don’t feel like I have any peace. I don’t feel like I have any
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    PEOPLE v. SILVERIA and TRAVIS
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    closure. And all I want is just, you know, to have just a little bit
    of justice for my husband, you know. That’s all I want. And this
    has been six years now, and it doesn’t seem like a lot, one
    afternoon or one day doesn’t seem like a lot, but I have been
    going through this now for six years, just waiting and waiting
    for a phone call, having to call . . . the attorney, ‘When is this
    going to happen?’ It’s just . . . not pleasant.” Silveria did not
    object and his mistrial motion based on this testimony, made
    after the jury had left for the day, was denied. The court found
    that nothing in the prosecutor’s question or Sissy’s response
    “put blame on the defense for them having to come back to
    court.”
    Even assuming Silveria’s claim is preserved, it is
    meritless. The prosecutor did not reasonably elicit Sissy’s
    testimony that she felt tortured simply by asking how she had
    been affected by a scheduling change. Nor, contrary to Silveria’s
    claim, was her testimony unduly prejudicial. The jury would
    reasonably expect that the anticipation of testifying in a trial
    regarding a loved one’s murder, and delays in the resolution of
    that trial, would be stressful. Moreover, Sissy’s statement was
    cumulative to other testimony Silveria does not challenge.
    Coworker Thuringer testified that nearly six years after the
    murder, and two days before Thuringer’s testimony, Sissy
    “really went to pieces” because she received a court scheduling
    call. Thuringer explained, “It just brings it back fresh all over
    again.” Sissy’s supervisor House testified that Sissy had been
    in tears and told House she had Thuringer speak to the
    prosecutor on the telephone because “I can’t. I just feel like I’m
    being tortured. This is just a constant torture to me.”
    To the extent Sissy’s challenged comments could
    reasonably be interpreted to mean she believed the death
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    penalty would be “justice” for Madden, as Silveria contends, the
    trial court instructed the jury: “Any wishes of the various
    members of the victim’s family concerning which penalty should
    be imposed is not before you and such evidence is inadmissible
    as irrelevant. You may not speculate about that matter,
    consider it, or take it into account in any way.” We presume the
    jury understood and followed this instruction. (Hajek and Vo,
    supra, 58 Cal.4th at p. 1178.)
    b. Closing argument
    (1) Victim impact
    Silveria and Travis contend that the trial court erred in
    allowing the prosecutor to argue “future victim impact
    evidence.” We reject the claim.
    At the penalty retrial, the trial court ruled that victim
    impact witnesses would be permitted to testify as to the effect of
    Madden’s murder upon them or a close family member up until
    the time of their testimony, “but nothing in the future as that is
    speculative.” During Silveria’s closing argument, defense
    counsel Annrae Angel mentioned her 18-month old son Ian. She
    later argued: “Life in prison without parole is enough for Danny
    Silveria. It is a serious punishment. . . . If you sentence
    Danny . . . to life in prison without parole, he will be in state
    prison for the rest of his life. As Ian grows up and as time
    passes, we can all — and all of the children that you know, we
    can look back and we can say, ‘He’s still in prison for what he
    did.’ And I submit to you that this case is not going to go away
    all that quickly. We’re going to think about this case for a long
    time. Maybe forever. This is not something that we will all
    easily put behind us and easily put in a box, because it is so filled
    with emotion and pain and heartache.”
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    In his rebuttal argument, the prosecutor said: “Well, it’s
    true that Mr. Travis and Mr. Silveria would be in prison for the
    rest of their lives, the rest of their natural lives, day after day,
    year after year. So why should you regret [returning a life
    imprisonment verdict]? Ms. Angel . . . says, ‘As Ian grows up
    and gets older and older you would know that the defendants
    are still in custody.’ Yes, you would. Holidays would come and
    go each year and would continue to do so as Ian grows up, as all
    of you get older, as your children grow up, as your children have
    children. Holidays would come and go for you, for your families,
    for Mr. Travis, for Mr. Silveria and for the Madden family. I
    submit that with each holiday, Valentine’s Day or Mother’s
    Day — ” Ms. Angel’s cocounsel, Mr. Braun, objected at sidebar
    that the prosecutor’s argument violated the court’s ruling
    precluding evidence of victim impact in the future. The trial
    court overruled the objection, finding the argument was “proper
    rebuttal based on what counsel has said in their opening
    arguments.”
    The prosecutor subsequently made the comments Silveria
    challenges here: “As the holidays come and go in the years to
    come, I submit that with each holiday, Valentine’s Day or
    Mother’s Day, Father’s Day, or Thanksgiving or Christmas, you
    will think about this. And remember, Ms. Angel pointed out this
    is a case that no doubt will stay with you forever, for a long
    time. . . . [A]s the years pass, you will consider that Julie
    Madden no longer has a father to give Valentine’s Day gifts to
    or Father’s Day gifts to. You will be wondering who will be
    taking Julie shopping for a Mother’s Day gift this year. As time
    goes on and the holidays come and go you will remember this
    case, ladies and gentlemen, for the rest of your lives. Every
    Christmas what will you think of? Will you think of Julie
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    Madden missing her father? Will you think of an empty space
    around a holiday table? Or, on the other hand, will you think of
    John Travis or Daniel Silveria somewhere in a prison facility
    living out the rest of . . . his or their natural lives, receiving
    visitors, sending holiday greetings, receiving cards or gifts?”
    Contrary to Silveria’s claim, the trial court did not permit
    the prosecutor “to violate [its] earlier order restricting victim
    impact to no later than the time of trial.” Silveria’s argument
    urging the jury to return a verdict of life imprisonment without
    the possibility of parole relied on the circumstance that as
    defense counsel’s son and other children the jurors knew grew
    older, the defendants would continue to be incarcerated. The
    prosecutor was entitled to respond to this argument by
    observing that as the victim’s daughter grew older, she would
    continue to be affected by her father’s murder. Moreover, in
    general it is not improper at the penalty phase of the trial for
    the jury to consider the “residual and lasting impact” of the
    murder (People v. Brown (2004) 
    33 Cal.4th 382
    , 398), so long as
    the “evidence is not so inflammatory as to elicit from the jury an
    irrational or emotional response untethered to the facts of the
    case.” (People v. Pollock (2004) 
    32 Cal.4th 1153
    , 1180; see
    People v. Garcia (2011) 
    52 Cal.4th 706
    , 762 [“Jurors were simply
    asked to draw reasonable inferences from evidence of the
    family’s close relationship and favorite activities about the long-
    term effects of Joseph’s murder on his children”]; People v.
    Verdugo (2010) 
    50 Cal.4th 263
    , 296–298 (Verdugo) [upholding
    admission of victim impact evidence of the family’s observance
    of the victim’s 19th birthday at the cemetery several months
    after her murder, statements made by the victim’s young niece
    that she had seen the victim after her death, and testimony that
    the victim’s father died seven months after her murder]; Brown,
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    at p. 398 [testimony that the victim’s brother saluted the
    victim’s grave every time he drove by the cemetery and that the
    victim’s father has not gone fishing since his son’s death was
    evidence of “understandable human reactions” to the murder].)
    Nor, as Silveria further contends, did the prosecutor’s
    argument “count[] the jurors among the victims of [the]
    defendant’s crime” by implying that “in order to mitigate the
    impact that the jurors would suffer on their future holidays,
    they should impose the death penalty,” or divert the jury from
    its proper sentencing role. Rather, Silveria argued that if the
    jury returned a sentence of life imprisonment without the
    possibility of parole, it could be reassured as time went by that
    the defendants would remain incarcerated. The prosecutor
    properly responded to this argument by suggesting the
    continuing effect of the murder on the victim’s family each
    holiday, and noting that the defendants, unlike the murder
    victim, would have the opportunity to continue to celebrate
    holidays should they serve a life imprisonment sentence.
    Travis contends that the trial court erred in allowing the
    prosecutor to argue: “Travis and Silveria took something from
    Jim Madden, something perhaps even more . . . valuable than
    his very life itself. And that’s a lifetime . . . with his wife, Sissy,
    and the opportunity of watching his little girl, being there for
    her in the audience during those dance performances instead of
    an empty chair, first father-daughter dance and the ones to
    follow, perhaps walking his little girl down the aisle when that
    time comes.” The trial court sustained defendants’ objections.
    Travis asserts that the prosecutor’s argument was an
    “appeal to pure emotion,” and that although the trial court
    sustained his objection, “the damage was already done.” The
    trial court instructed the jury before closing arguments that “[i]f
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    an objection was sustained to a question, do not guess what the
    answer might have been. Do not speculate as to the reason for
    the objection.” The jury would reasonably apply this principle
    to sustained objections during closing argument.
    (2) Retribution
    Silveria and Travis contend the trial court erred in
    allowing the prosecutor to argue for retribution while precluding
    defendants from arguing for mercy. There was no error.
    During Silveria’s closing argument, defense counsel
    Mr. Braun said: “Now, what justification can the state offer you
    for killing Mr. Silveria? I submit there is only one, and that is
    pure retribution for what might colloquially be termed payback
    or vengeance. Now, would any such punishment or vengeance
    bring back Jim Madden or somehow make his family whole? It
    will not.”
    On rebuttal, the prosecutor argued: “Mr. Braun argues
    that since the victim can’t be brought back nothing can be
    gained by killing a killer so why should society do that. I submit,
    ladies and gentlemen, that everyone from a civilized society has
    the right to make sure that the law, theoretically and ideally, is
    carried out as it’s supposed to be, because each of us have given
    up our personal right to do that ourselves. The instinct for just
    retribution is part of the nature of every human being.
    Channeling that instinct to the administration of criminal
    justice serves an important purpose in promoting the stability
    of a society that is . . . governed by law and order. Where certain
    crimes are concerned, and this is definitely one of them,
    retribution is not a forbidden consideration or one inconsistent
    with society’s respect for the very dignity of man and humanity.
    The decision that capital punishment may be the appropriate
    action in an extreme case, which I submit this is, is the
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    expression of the community’s belief that certain crimes are, and
    those who commit them in and of themselves are, so grievous an
    af[f]ront to humanity that the only appropriate response must
    be the imposition of the penalty of death.”
    Travis did not object to the prosecutor’s reference to
    retribution, but his objection to reference to the “community’s
    feelings about this” was sustained, and the court also struck this
    language. The prosecutor continued: “Like it or not, ladies and
    gentlemen, retribution is still a part of being human and of being
    a human being. I submit that in spite of the fact that both
    defendants are asking you, or their lawyers are, to spare their
    lives, that when they chose to take Jim Madden’s life that night
    they forfeited their own.” Silveria unsuccessfully objected that
    the argument implied “that the act itself automatically
    warrants the death penalty.”
    Silveria asserts that allowing the prosecutor to argue for
    retribution, but precluding an argument for mercy by defense
    counsel, “blatantly displayed the depth of the unfairness and
    uneven treatment . . . accorded” Silveria. Assuming this claim
    is preserved, it is meritless. As discussed above, although
    defense counsel were precluded from using the word “mercy”
    during closing argument, they were accorded great latitude in
    marshalling the mitigating evidence and attempting to
    persuade the jury that this evidence warranted a sympathetic
    response from the jury and the imposition of a lesser
    punishment. (See ante, pt. II.B.7.a.) Hence no unfair treatment
    is demonstrated. Moreover, the prosecutor’s reference to
    retribution was a legitimate response to Silveria’s closing
    argument that retribution would accomplish little because it
    could not “bring back” Madden.
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    (3) Societal demand for the death penalty
    Travis asserts that the trial court erred in allowing the
    prosecutor to present an argument that “effectively urged the
    jury to return a death verdict” not based on the capital crime or
    the defendants, but “because society demanded such a penalty
    for anyone guilty of murder.” We reject the claim.
    Travis broadly contends that “the prosecutor was
    permitted to argue that a jury that chose life without parole was
    taking the easy way out, that a death verdict was merely the
    fulfillment of a responsibility resulting from a law passed by the
    jurors’ fellow citizens and affirmed by the courts, and that any
    action beyond the least-aggravated murder possible was
    automatically a factor in aggravation of the penalty.” As to the
    assertion that the “prosecutor was permitted to argue that a jury
    that chose life without parole was taking the easy way out,” the
    prosecutor argued: “I come before you . . . to ask you to return a
    verdict of death against these two defendants. . . . This request
    is made on the basis of the evidence showing that these two
    defendants . . . have committed the worst of crimes under the
    law of this state and have under our social contract earned that
    ultimate penalty. I don’t ask this of you lightly. I know full well
    that this is a hard, hard thing for me to ask all of you to consider
    and to do. . . . [A]s a direct result of the verdicts in the guilt
    phase of this trial [defendants] . . . will be sentenced to no less
    than life in prison without parole for what they have done. To
    simply let that happen, to let them go off to prison to live out the
    rest of their natural lives would be the easy way out,” but not
    “what the evidence in this case warrants . . . . You, ladies and
    gentlemen, the few, have been selected as representatives of the
    community in this case to decide the question of which of the
    only two possible penalties here, death or life without parole,
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    should be meted out to these two defendants for what they have
    done. Your verdict, ladies and gentlemen, will reflect the
    conscience of the community on the ultimate question of penalty
    for what Mr. Travis and Mr. Silveria did here. It’s a solemn
    responsibility . . . . The responsibility of voting for the
    appropriate penalty in this case, given the evidence, is not one
    to be taken lightly, and that responsibility is not one to take the
    easy way out of by voting for life without parole simply because
    the other alternative is too difficult to contemplate. That
    wouldn’t be right.”
    In arguing that the jury should not “take the easy way
    out . . . by voting for life without parole,” the prosecutor simply
    urged the jury to consider the death penalty even though that
    consideration was “difficult to contemplate.” That is proper.
    (Spencer, supra, 5 Cal.5th at p. 685 [the prosecutor did not
    “denigrate the jury’s ‘solemn responsibility’ by insisting that
    anything but a death sentence would be taking the easy way
    out,” but rather “urged jurors not to forgo the punishment for
    the wrong reasons — because it would absolve them of the need
    to weigh the moral blameworthiness of [the defendant’s]
    conduct”]; see People v. Adcox (1988) 
    47 Cal.3d 207
    , 259 [in
    arguing that the jury not “ ‘take the easy way out and not make
    a decision based on the evidence’ ” the prosecutor “simply urged
    the jury not to decide defendant’s fate based on untethered
    compassion for him or his mother alone, without following their
    lawful obligation to consider the evidence”].)
    In his reply brief, Travis contends that “jurors in a capital
    case are bound by no ‘social contract’ to return a death verdict.”
    The prosecutor did not argue that the jurors were bound by
    social contract to return a death penalty verdict and there is no
    reasonable likelihood the jury understood the prosecutor’s brief
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    Opinion of the Court by Groban, J.
    comment in this way. Rather, the prosecutor repeatedly
    reminded the jury its role was to determine whether defendants
    should receive a penalty of death or life imprisonment without
    the possibility of parole.         For example, the prosecutor
    subsequently observed: “You’ve heard a lot of evidence. No
    doubt you have paid great attention to the evidence that you
    have heard. Never can it be said that the penalty which you
    finally decide that Mr. Travis and Mr. Silveria should receive for
    what they have done here will be something that wasn’t
    considered and reflected on by a jury of twelve who are
    considering all of the factors that the law says they are to
    consider within the scope of the law. . . . Now, when you do
    decide this case, do not decide it on prejudice or whim, but decide
    it upon an extensive moral evaluation of the evidence.”
    Travis contends that the “prosecutor was permitted to
    argue . . . that a death verdict was merely the fulfillment of a
    responsibility resulting from a law passed by the jurors’ fellow
    citizens and affirmed by the courts.” The prosecutor simply
    urged the jury that if it found after a consideration of the
    evidence that death was the appropriate punishment, it should
    not hesitate to reach that verdict because of a feeling of guilt.
    Travis also contends that the prosecutor argued “that any
    action beyond the least-aggravated murder possible was
    automatically a factor in aggravation of the penalty.” The
    prosecutor properly argued that certain circumstances of the
    capital crime, such as defendants’ planning of the robbery and
    murder of Madden by arming themselves and obtaining duct
    tape and gasoline, and their waiting and watching for Madden
    to close the store, made the crime more egregious than a simple
    store robbery.
    169
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Nor, as Travis asserts, did the prosecutor “unmistakably
    impl[y] criticism of any juror who did not vote for death —
    implying that such jurors were lacking in strength and courage.”
    The prosecutor argued: “The penalty must fit the crime for
    justice to be satisfied and served. I’m asking you to find that
    under the circumstances of this case justice requires that
    ultimate penalty for the wrongs done here, the imposition of the
    death penalty for Mr. John Travis and for Mr. Daniel
    Silveria. . . . I submit to you that there’s no question that each
    of these men deserve the death penalty for participating in this
    indescribably brutal murder, this crime that we have here. And
    I submit when you think about it that’s not really the issue if
    you’re honest with yourselves. The issue is whether you have
    the courage, the strength to do what the law requires, to weigh
    and evaluate and to impose what is required here by the facts
    and circumstances of . . . this horrible crime of what was done to
    this man, Jim Madden, what was done to his family.
    Remember, we as individual members of society have given up
    our right to take the law into our own hands and have entrusted
    the state and our system of justice to apply. A free society
    requires of its citizens, of its jurors vigilance, courage and
    strength and resolve in making the decision that you’re going to
    have to make here. What I’m asking you to do is to follow the
    law, consider the evidence and render a just verdict appropriate
    for these men and their crime.”
    The prosecutor simply argued that in his view death was
    the appropriate punishment based on the evidence, and urged
    the jury to adopt this view. His reference to courage was in
    regard to the difficulty of considering the evidence and making
    a penalty decision. His comments were different from those we
    criticized as “unfair and unkind” in People v. Williams (1988)
    170
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    
    45 Cal.3d 1268
    , 1326, on which Travis relies. In Williams, the
    prosecutor compared prospective jurors who had been excused
    because they could not decide the issue of penalty to “ ‘people
    who do not take a position in life between good and evil, they are
    bystanders in every type of war we have,’ ” and speculated they
    would “ ‘stand by and watch an innocent person [be] struck down
    because they don’t want to impose themselves in the battle
    between good and evil.’ ” (Id. at pp. 1325–1326.) No such
    aspersions were present here.
    The prosecutor stated: “Thankfully because of this process
    of law, of which you have all now become a part, we’re no longer
    a society that’s made up of vigilante justice or lynch mobs crying
    out for vengeance in the streets.” Travis asserts that by this
    statement “the prosecutor was able to imply that anything less
    than a death verdict would invite a return to vigilante justice
    and lynch mobs,” and that the prosecutor’s argument pertained
    not to “the present crimes or to the backgrounds of the
    perpetrators,” but “equally to every murder, urging the jurors to
    react with a gut emotional revulsion.” Travis also erroneously
    asserts that the objections by both counsel to the prosecutor’s
    statement were overruled. They were, in fact, sustained, and
    the court struck the comment and instructed the jury to
    disregard it. We presume the jury understood and followed
    these instructions. (Hajek and Vo, supra, 58 Cal.4th at p. 1178.)
    Travis further contends that “this strong appeal to
    emotion was punctuated by twenty-seven photographs of the
    bloody victim, prominently displayed throughout the argument,
    generating continuing tears from the victim’s widow and
    mother.” Travis does not identify the 27 exhibits or challenge
    their admission. On the record page he cites, during a recess,
    Silveria observed that 17 crime scene photographs and five
    171
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    autopsy photographs unveiled during the argument were still on
    display. Silveria identified 17 of the exhibits. He asserted: “At
    the point where those were unveiled Mr. Madden’s widow,
    Shirley [Sissy] Madden, who has been present in the court
    during all of these arguments and his mother, Joan Madden,
    who has also been present for all of these arguments at that
    point in time began to cry. And I notice that Mrs. Joan Madden
    essentially was crying continuously thereafter right up until
    the . . . beginning of this recess which I believe exacerbates the
    prejudice that was created when the Court admitted some of
    those photographs which I had objected to.” The court replied:
    “[T]he Court has ruled that all those photographs are
    admissible . . . . And the fact that they were exposed to the jury
    is perfectly proper in that they are in evidence. It’s something
    for the jury to consider.”
    Travis asserts no reason why the court’s ruling is
    incorrect. Under Evidence Code section 352, “[t]he court in its
    discretion may exclude evidence if its probative value is
    substantially outweighed by the probability that its admission
    will (a) necessitate undue consumption of time or (b) create
    substantial danger of undue prejudice, of confusing the issues,
    or of misleading the jury.” The trial court’s discretion to
    preclude evidence such as crime scene and autopsy photographs
    under Evidence Code section 352 “ ‘is much narrower at the
    penalty phase than at the guilt phase. This is so because the
    prosecution has the right to establish the circumstances of the
    crime, including its gruesome consequences ([Pen. Code,]
    § 190.3, factor (a)), and because the risk of an improper guilt
    finding based on visceral reactions is no longer present.’
    [Citations.] At the penalty phase, the jury ‘is expected to
    subjectively weigh the evidence, and the prosecution is entitled
    172
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    to place the capital offense and the offender in a morally bad
    light.’ ” (Bell, supra, 7 Cal.5th at pp. 105–106.)
    We have reviewed the murder and autopsy photographs
    identified during the recess. Although they are graphic and
    unpleasant, they illustrated for the jury the circumstances of the
    crime. The trial court acted within its discretion in concluding
    their probative value at the penalty retrial was not substantially
    outweighed by the probability of undue prejudice.
    As to the asserted emotional display by Sissy and Joan
    Madden, Travis does not inform us if the matter was addressed
    by the court or claim to have objected below. Nor does he raise
    a claim regarding spectator conduct on appeal. Nor does the
    circumstance — standing alone — that these family members
    may have cried demonstrate that allowing the display of the
    photographs during closing argument was erroneous or unduly
    inflammatory. Indeed, the jury would reasonably anticipate
    that autopsy and crime scene photographs of the murder victim
    might be emotionally upsetting to the victim’s family. (See
    Verdugo, 
    supra,
     50 Cal.4th at p. 298 [“the circumstance that
    [the victim’s] mother cried during her [own] testimony does not
    render that testimony inflammatory. Her tears reflected a
    normal human response to the loss of a child, a response that
    the jury would reasonably expect a mother to experience”].)
    Travis asserts that “[t]his emotional appeal” was
    exacerbated “by a large graphical depiction of the scales of
    justice with a very long list of assertedly aggravating factors on
    one side, arrayed against a mocking abbreviation of the many
    legitimate mitigating factors on the other side.” We have
    reviewed both this exhibit and the similar exhibit that was used
    by the prosecutor when discussing the evidence regarding
    Silveria. We conclude the charts’ recitation of the aggravating
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    and mitigating evidence accurately listed the relevant factors
    and was not misleading simply because it broke down in greater
    detail the aggravating factors. Travis was free to elaborate on
    the mitigating factors during his closing argument or present
    his own chart.       Although he contends he had no “fair
    opportunity” to create his own chart, he points to no place in the
    record where he requested additional time to do so. Nor, to the
    extent Travis raises this argument, did the “use of a chart
    impl[y] that scales . . . should be used in determining penalty,
    and that the process is one of numerical computation rather
    than evaluation and judgment.”          (People v. Fauber (1992)
    
    2 Cal.4th 792
    , 861.) Rather, “[t]aking the argument as a whole,
    we find it readily apparent that the prosecutor took care to avoid
    any such mechanistic approaches to the sentencing decision.”
    (Ibid.)
    Travis further asserts that the prosecutor’s “emotional
    appeal was punctuated by the dramatic and completely
    unnecessary act of repeatedly firing the stun gun into the air,
    producing a sound and an electrical spark that was far different
    from what would occur when a stun gun was fired at a person.”
    This assertion is not supported by Silveria’s counsel’s statement
    during a recess, on which Travis relies, that the prosecutor had
    “zapped” the stun gun “in the air for approximately one second.”
    Nor, given there was no evidence Travis used the stun gun on
    Madden, is it clear how Travis claims he was prejudiced by this
    demonstration.
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    10. Additional Asserted Instructional Error
    a. Deliberate and premeditated murder
    Silveria contends that the trial court erred in instructing
    the jury they were free to determine whether he committed a
    deliberate and premeditated murder. We reject the claim.
    The court instructed the jury: “The juries that heard the
    guilt portion of the trial determined that Mr. Travis and
    Mr. Silveria were each guilty of murder in the first degree and
    that the special circumstances of murder in the course of
    burglary and in the course of robbery were true. Those juries
    were not asked to and did not state in their verdicts upon which
    theory they found the murder to be in the first degree. There is
    no way to know whether the prior juries found the defendants
    guilty of first degree murder on the same theory or on different
    theories, nor is it possible to know if either or both juries found
    the murder to be premeditated or intentional on the part of
    either or both defendants. It is not necessary that any or all of
    you make a determination as to which theory the defendants are
    guilty of first degree murder. However, such a determination
    can be made by any or all of you and considered as a
    circumstance of the crime under [f]actor (a). You are free to
    make that determination for yourselves.” The court then
    instructed the jury on the theories of premeditated and felony
    murder.
    Silveria contends that under this “erroneous instruction,
    one or all of the second penalty phase jurors could have
    improperly concluded that [Silveria] committed a deliberate and
    premeditated murder by a lesser standard than” beyond a
    reasonable doubt, “or no standard at all; then sentenced him to
    death since such a murder increased his culpability.” As the
    People note, Silveria requested this instruction because he was
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    concerned the penalty retrial jury would assume he had been
    found guilty of premeditated murder. He also agreed to the trial
    court’s modification of his proposed instruction. Having done so,
    he cannot now complain that the instruction was given. (Powell,
    supra, 6 Cal.5th at p. 170 [the “asserted error was invited by his
    counsel’s own request”]; People v. Penunuri (2018) 
    5 Cal.5th 126
    ,
    157 [“Because any error was invited by the defense, it cannot
    now be asserted as a basis for relief”].)
    Moreover, the instruction did not affect Silveria’s
    substantial rights. It is well settled that the guilt phase jury is
    not required to agree on a theory of first degree murder.
    (People v. Potts (2019) 
    6 Cal.5th 1012
    , 1048.) In addition, “[a]
    defendant’s culpable mental state may be considered a
    circumstance of the crime under section 190.3, factor (a).”
    (People v. Dykes (2009) 
    46 Cal.4th 731
    , 802, fn. 18 (Dykes).)
    Here, it was not known on what theory the guilt phase jury had
    convicted Silveria of first degree murder. Yet, “[e]ven when the
    verdict is based upon a felony-murder theory, it is appropriate
    to consider any apparent premeditation on the part of the
    defendant as an aggravating circumstance of the crime.” (Id. at
    pp. 802–803, fn. 18, italics added; see id. at p. 802 [“a jury that
    has convicted a defendant of first degree murder on the basis of
    a felony-murder theory may consider, as part of its evaluation of
    the defendant’s culpability and its moral and normative decision
    concerning the appropriate penalty, the defendant’s state of
    mind with respect to the murder — that is, whether the
    defendant also intended to kill or acted with malice
    aforethought”].)      Contrary to Silveria’s contention, in
    considering evidence of Silveria’s state of mind, the penalty
    retrial jury was not determining whether he committed murder,
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    a fact already conclusively found beyond a reasonable doubt by
    the guilt phase jury.
    b. CALJIC No. 8.84.1
    Silveria contends that the trial court erroneously failed to
    instruct the jury in the language of CALJIC No. 8.84.1 to
    “[d]isregard all other instructions given to you in other phases
    of this trial.” Such an instruction would have been mystifying
    to the jury given it had only served at the penalty retrial and
    was not familiar with the instructions given at the other trial
    phases.
    11. Asserted Judicial Misconduct
    Silveria contends that the trial court’s unjustified abuse
    and unequal treatment of his defense counsel, Geoffrey Braun,
    combined with erroneous legal rulings, violated his rights under
    the Sixth, Eighth, and Fourteenth Amendments to the federal
    Constitution. We reject the claim.
    Silveria cites to more than 65 different colloquies in the
    314 volumes of the reporter’s transcript for this case to support
    his claim that the trial court “engaged in a pattern of overt
    judicial hostility toward” Braun, but treated the prosecutor with
    courtesy. Nineteen of the challenged colloquies are from the
    first penalty phase. As Silveria acknowledges, he suffered no
    possible prejudice from any assumed misconduct at the first
    penalty phase because the jury hung as to penalty.
    Most of the remaining challenged colloquies were not
    made in the presence of either the guilt phase jury or the penalty
    retrial jury, but at hearings held outside the presence of the
    jury. Therefore they could not have prejudiced either jury’s view
    of Braun or Silveria. In addition, for many of the challenged
    colloquies, Silveria simply recites what was said during the
    177
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    exchange, and makes no effort to explain how the exchange
    constitutes judicial misconduct. As Silveria acknowledges, “a
    trial judge has the discretion to rebuke an attorney when that
    attorney askes inappropriate questions, ignores the court’s
    instructions, or otherwise engages in improper conduct.”
    For others, Silveria simply disputes the trial court’s ruling
    on an objection or motion, but does not explain how any assumed
    legal error constituted judicial misconduct. “[A] judge’s ‘rulings
    against a party — even when erroneous — do not establish a
    charge of judicial bias, especially when they are subject to
    review.’ ”28 (People v. Armstrong (2019) 
    6 Cal.5th 735
    , 798.)
    For the vast majority of the challenged colloquies Silveria
    did not object on the grounds of judicial misconduct, no
    exception to the general requirement of an objection applies, and
    the claim as to these instances is therefore forfeited. (People v.
    Houston (2012) 
    54 Cal.4th 1186
    , 1220.) We discuss below two
    colloquies in which he did object. Although “a failure to object
    to judicial misconduct does not preclude appellate review when
    an objection could not have cured the prejudice or would have
    been futile” (ibid.), Silveria fails to demonstrate
    circumstances — such as a trial court’s numerous “sua sponte
    objections” to questions posed by defense counsel and
    28
    Indeed, we have already addressed and rejected above
    Silveria’s claim that the trial court erroneously allowed the
    prosecutor to introduce “highly prejudicial evidence of an
    attempted murder by a notorious prison gang,” noting no
    reference to the Nuestra Familia prison gang was made before
    the jury, but rather was only mentioned by Travis’s counsel
    during a bench conference. (See ante, pt. II.B.4.g.) Given the
    evidence was never introduced or even mentioned in front of the
    jury, it also provides no factual predicate for a claim of judicial
    misconduct or bias.
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    “derogatory comments” to counsel and defense witnesses — that
    would have made his objections futile (People v. Sturm (2006)
    
    37 Cal.4th 1218
    , 1237 (Sturm); see id. at p. 1233).
    Moreover, we have reviewed the challenged portions of the
    record and conclude Silveria’s claim as to each instance is
    meritless. The record indicates the trial judge was engaged,
    thoughtful, and occasionally abrupt with each party’s counsel
    during this lengthy trial when it appeared counsel was
    exceeding appropriate boundaries.            Silveria “fails to
    demonstrate any judicial misconduct or bias, let alone
    misconduct or bias that was ‘so prejudicial that it deprived
    defendant of “ ‘a fair, as opposed to a perfect, trial.’ ” ’ ”
    (People v. Maciel (2013) 
    57 Cal.4th 482
    , 533.)
    a. Madden’s shirt
    Before the penalty retrial, Silveria moved to exclude as an
    exhibit the bloody shirt Madden had been wearing at the time
    of the murder. The court ruled that the shirt was admissible
    and not unduly prejudicial, noting “it can be displayed to the
    jury, but as soon as the witness is through testifying about the
    shirt . . . [it] should be taken down.”
    At the penalty retrial, the prosecutor asked
    Dr. Pakdaman, the pathologist who had performed Madden’s
    autopsy, about Madden’s shirt. Silveria asked for an offer of
    proof “as to what relevant evidence . . . can be provided by the
    shirt.” At sidebar, the prosecutor explained the shirt was
    relevant to the pathologist’s stab wound testimony, and after
    hearing argument, the court overruled Silveria’s objection. The
    pathologist resumed testifying about the shirt, and when he was
    asked by the prosecutor about a wound with a different track
    than the others, Silveria again unsuccessfully objected that the
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    shirt testimony was irrelevant and sought to have it struck and
    the shirt covered.
    Soon after, the prosecutor stated he had no further
    questions about the shirt, and said, “If Mr. Braun wishes to
    cover it up, that would be fine.” Braun replied, “Well, I would
    ask that the person who uncovered it cover it.” The court said,
    “Cross-examination, Mr. Leininger?” The prosecutor said, “I
    [still] had a couple of questions regarding the throat. I had
    nothing about the shirt. I was just deferring to Mr. Braun if he
    wishes to cover it.” Braun replied, “Is Mr. Rico suggesting, Your
    Honor, that I go up there and —” The court said: “Oh, come on,
    people. Why don’t we just cover the shirt. I don’t believe it. I
    really don’t believe it.” Braun said, “I don’t either.” The court
    replied, “Mr. Braun, why don’t you just be quiet. Thank you.”
    The prosecutor continued his direct examination.
    Later that same day, during Travis’s cross-examination of
    Dr. Pakdaman, Travis’s counsel Leininger responded to an
    objection by the prosecutor by stating: “Well, the victim wasn’t
    responding to me. I don’t mean the victim. The witness.” The
    prosecutor said, “The victim won’t respond in this case.” The
    court said, “Let’s get on with it.”
    At the next recess, outside the presence of the jury,
    Silveria moved for a mistrial. Braun stated: “I object to the fact
    that the shirt was shown to the jury and move for a mistrial on
    that ground . . . . I also object to the way the Court treated me
    when the subject of covering the shirt up again arose. . . . In the
    course of that colloquy in which I think my behavior was entirely
    appropriate the Court in the presence of the jury told me to be
    quiet which I thought was demeaning to me and harmful to the
    defense generally in how that whole thing appeared to the jury.
    I object to that and join that to the exposure of the shirt itself in
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    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    my motion for a mistrial.” Braun also moved for a mistrial on
    the basis of the prosecutor’s comment that “ ‘the victim won’t
    respond either[,]’ or words to that effect,” when
    “Mr. Leininger . . . accidently referred to Dr. Pakdaman who
    was the witness as ‘the victim.’ ”
    The court denied the mistrial motion, noting: “As far as
    the Court telling you to sit down, Mr. Braun, it’s not the first
    time the Court has had to do that because you’re a very slow
    learner. As far as the shirt being re-covered up, it was your
    motion to have it covered up or to cover it up and your
    conversations directly with Mr. Rico w[ere] completely
    improper, as you should know.”
    The court continued: “Now, apparently we’re dealing with
    a kindergarten class here by the three of you and I’m not at all
    happy with any of you. So therefore we have to treat you like
    kindergartners. And if I have to do it in front of the jury, by
    God, I will. I would expect this from some of the newer attorneys
    in this county, but not from you three. You’ve been around long
    enough. Thou shalt not continue to argue a point or objection
    after the Court has ruled. Thou shalt not address each other
    directly, only through the Court. Apparently you can’t do it
    civilly. Thou shalt not interrupt an attorney during the
    attorney’s argument. Thou shalt not make snide, catty or cheap
    remarks whether under thy breath or not. Thou shalt not
    interrupt a witness when the witness is answering thy
    questions. And any violation of these orders will result[] in thou
    paying the coffers of the general fund of this county. Does
    everybody understand that?”
    Silveria claims the court’s comments demonstrate the
    court’s “persistent[,] uneven treatment of Braun.” The record is
    otherwise. It indicates that in front of the jury, the trial court
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    Opinion of the Court by Groban, J.
    reprimanded both parties about their inappropriate comments
    regarding who would cover the shirt. The court only focused on
    Braun after he said he shared the court’s disbelief at the
    attorneys’ conduct and thus appeared to be minimizing his own
    culpability.
    Likewise, in denying Silveria’s mistrial motion outside the
    jury’s presence, the court largely directed its conduct
    admonition to all counsel. Although the court observed it had
    previously had to tell Braun to sit down, and that Braun was a
    slow learner, these comments, albeit a bit intemperate, fall well
    short of demonstrating judicial misconduct. (See Sturm, 
    supra,
    37 Cal.4th at p. 1233 [A “ ‘trial court commits misconduct if it
    persistently makes discourteous and disparaging remarks to
    defense counsel so as to discredit the defense or create the
    impression that it is allying itself with the prosecution’ ”].)
    Indeed, Braun seemed unwilling to accept the court’s ruling
    with respect to the bloody shirt. Even though Silveria’s pretrial
    in limine motion to exclude the shirt had been denied, during
    the pathologist’s direct examination about the shirt at the
    penalty retrial Braun unsuccessfully objected at sidebar to
    admission of the shirt and then later moved to strike all
    testimony about the shirt.
    Nor does the court’s denial of Silveria’s mistrial motion on
    the ground that the prosecutor had made an inappropriate
    comment to Travis’s counsel that the victim would not respond
    demonstrate bias toward Braun or constitute judicial
    misconduct. As noted, the court has broad discretion in ruling
    on a mistrial motion, and though the prosecutor’s statement in
    front of the jury was inappropriate, the court could reasonably
    conclude its comment, “Let’s get on with it,” adequately
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    Opinion of the Court by Groban, J.
    addressed the prosecutor’s gratuitous aside. (See Collins, 
    supra,
    49 Cal.4th at p. 198; see ante, pt. II.B.6.)
    b. Indirect contempt
    During a recess in the prosecutor’s cross-examination of
    Travis, Travis’s counsel requested leave to interrupt the cross-
    examination so that defense expert Dr. Cermak could testify.
    The prosecutor, Mr. Rico, unsuccessfully opposed the motion.
    After the recess, and before the jury was brought in, the
    court stated: “Mr. Braun, regarding your indirect contempt that
    you weren’t able to accomplish here after the Court took the
    recess this morning in your behavior regarding Mr. Rico, your
    laughing, your taunting him, as far as I’m concerned — you don’t
    need to answer this, Mr. Braun. Just have a seat because I am
    not going to hear — I am not —” Braun interjected, “I feel I do.”
    The court replied, “I am not going to hear an answer from you,
    Mr. Braun. If you don’t sit down[,] I will hold you in direct
    contempt, do you understand that?” Braun began, “I feel — ”
    The court said: “And the deputy will sit you down; do you
    understand? Now do it now. As far as I’m concerned, you’re all
    acting like children. Why don’t you all try being professional?
    If there’s any further acting out like this the offending party will
    be banned from the courtroom during any recess.” Braun
    replied, “Your Honor, there was acting out, but it wasn’t by me.”
    The following day, during a recess that the court had told
    the jury would last “about 15 minutes,” the court reminded
    Braun he had earlier indicated he wanted to put something on
    the record. Braun stated: “I’m still very upset over what
    occurred . . . yesterday afternoon when the Court indicated that
    I was in indirect contempt . . . . I think that the Court owes me
    an apology for accusing me of the indirect contempt in the
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    Opinion of the Court by Groban, J.
    manner in which the Court did and I would ask permission now
    to put the matter on the record as to what in fact did happen,
    then there w[ere] other things that I needed to follow through
    with.”
    The court replied: “Follow-up. Do the other things then.
    We’re not going to hear this.” Braun then engaged in a lengthy
    argument asserting that he was treated differently from other
    counsel in the case because the court “almost invariably” did not
    permit him to make a record or complete his arguments, and
    had “demonstrated overt hostility toward” Braun “in open court
    throughout this trial” and “at the bench . . . simply for making
    arguments that ought to be made by any counsel who is
    zealously representing his client. . . . I thought that the Court
    treated me very badly in the manner of my calling Dr. Kormos
    as a witness.”
    The court replied: “What are you talking about? Would
    you explain that a little bit more.” Braun said that he was
    referring to when, during Dr. Kormos’s testimony, the court had
    “essentially castigat[ed] me and blam[ed] me in a very angry and
    what I perceived as a hostile tone of voice for simply calling my
    witness.”     Braun continued, asserting that “the whole
    atmosphere in this court is very intimidating to me,” “the Court
    has been very one-sided against the defense, and me in
    particular,” and citing as the “worst example . . . when only I got
    castigated for indirect contempt” the day before. He moved for
    a mistrial.
    The court replied: “That motion is denied. Anything that
    has come to you, Mr. Braun, you brought upon yourself. . . .
    [T]he Court has a duty to control a proceeding. Now, the
    problem arises when counsel continue to argue objections and
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    Opinion of the Court by Groban, J.
    argue with the Court after the Court has ruled. . . . Counsel
    continues to argue, and Mr. Braun unfortunately is the biggest
    offender of this in the Court’s eyes. I think the record will show
    many times where the Court has had to tell Mr. Braun to please
    be quiet, to shut up, or whatever, because the Court has ruled,
    and Mr. Braun insists on going further and further and pushing
    the envelope further and further.”
    No judicial misconduct or bias is demonstrated. Although
    the court did not fully describe on the record Braun’s
    objectionable recess behavior, it appears Braun had acted
    inappropriately by appearing to visibly taunt the prosecutor
    when the prosecutor unsuccessfully opposed Travis’s motion to
    allow Dr. Cermak to testify out of order. The court therefore
    reprimanded Braun, and told all counsel they were acting like
    children, and that such visible taunting would not be tolerated.
    The court could reasonably be of the view there was little Braun
    could say to ameliorate his observed conduct, and decline to hear
    argument on the matter. The court’s language may have been
    intemperate, but it was outside the presence of the jury and an
    effort by the court to control what it perceived to be
    inappropriate conduct by counsel. The following day, when
    during a recess scheduled to last 15 minutes Braun moved for a
    mistrial based on not only this interaction but on broad
    generalizations regarding the court’s treatment of him
    throughout the trial, the court listened patiently and allowed
    Braun to speak at length.
    Silveria asserts:    “Not every example amounts to
    misconduct independently, nor does each necessarily involve an
    erroneous legal ruling. But together they tend to illustrate the
    demeaning and hostile attitude [the trial court] displayed
    toward Braun.” We conclude that Silveria has failed to
    185
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    demonstrate any individual instance of judicial bias or
    misconduct, nor are the challenged colloquies cumulatively
    prejudicial.
    12. Constitutionality of the Death Penalty Statute
    Defendants contend California’s death penalty statute
    and implementing instructions are constitutionally invalid in
    numerous respects. We have repeatedly rejected similar claims,
    and defendants provide no persuasive reason to revisit our
    decisions.
    “[T]he California death penalty statute is not
    impermissibly broad, whether considered on its face or as
    interpreted by this court.” (Dykes, supra, 46 Cal.4th at p. 813.)
    We further “reject the claim that section 190.3, factor (a), on its
    face or as interpreted and applied, permits arbitrary and
    capricious imposition of a sentence of death.” (Ibid.; see
    Tuilaepa v. California (1994) 
    512 U.S. 967
    , 975–976, 978.)
    Defendants claim that the failure to require the jury
    unanimously find true the aggravating factors relied on violates
    the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
    federal Constitution. We have previously rejected this claim.
    (Rangel, supra, 62 Cal.4th at p. 1235; People v. Casares (2016)
    
    62 Cal.4th 808
     853–854.) Nor does the death penalty statute
    “lack safeguards to avoid arbitrary and capricious sentencing,
    deprive defendant[s] of the right to a jury trial, or constitute
    cruel and unusual punishment on the ground that it does not
    require . . . findings beyond a reasonable doubt that an
    aggravating circumstance (other than Pen. Code, § 190.3,
    factor (b) or (c) evidence) has been proved, that the aggravating
    factors outweighed the mitigating factors, or that death is the
    appropriate sentence.” (Rangel, at p. 1235.) “Nothing in
    186
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    Hurst v. Florida (2016) 577 U.S. ___ [
    193 L.Ed.2d 504
    , 
    136 S.Ct. 616
    ], Cunningham v. California (2007) 
    549 U.S. 270
     [
    166 L.Ed.2d 856
    , 
    127 S.Ct. 856
    ], Blakely v. Washington (2004)
    
    542 U.S. 296
     [
    159 L.Ed.2d 403
    , 
    124 S.Ct. 2531
    ], Ring v. Arizona[
    (2002)] 
    536 U.S. 584
    , or Apprendi v. New Jersey [, supra,]
    
    530 U.S. 466
     . . . , affects our conclusions in this regard.”
    (Rangel, at p. 1235; see id. at p. 1235, fn. 16.)
    Silveria alternatively claims that the “jury should have
    been instructed that there was no burden of proof.” In fact, the
    trial court here instructed the jury that “there is no burden of
    proof in a penalty phase” other than for evidence of
    unadjudicated “criminal activity involving force or violence or
    the threat thereof under Factor (b) or any prior felony conviction
    under Factor (c)” which “must be proven beyond a reasonable
    doubt.” Silveria also claims that the instructions erroneously
    failed to inform the jury that a finding a mitigating
    circumstance was true need not be unanimous. But again here
    the court instructed the jury it need not be unanimous in finding
    the “existence or truth” of a mitigating factor.
    The trial court need not instruct that there is a
    presumption of life, or that if the mitigating factors outweigh
    the aggravating factors the jury should return a verdict of life
    imprisonment without the possibility of parole. (People v.
    Williams (2016) 
    1 Cal.5th 1166
    , 1204; People v. Adams (2014)
    
    60 Cal.4th 541
    , 581.) The trial court was not required to delete
    inapplicable factors from CALJIC No. 8.85 (People v. Watson
    (2008) 
    43 Cal.4th 652
    , 701), or “instruct that the jury can
    consider certain statutory factors only in mitigation” (People v.
    Valencia (2008) 
    43 Cal.4th 268
    , 311). “Written findings by the
    jury during the penalty phase are not constitutionally required,
    and their absence does not deprive [a] defendant of meaningful
    187
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    appellate review.” (People v. Mendoza (2011) 
    52 Cal.4th 1056
    ,
    1097.) “A prosecutor’s discretion to select those eligible cases in
    which the death penalty is sought does not offend the federal or
    state Constitution.” (People v. Wallace (2008) 
    44 Cal.4th 1032
    ,
    1098.) Nor does such discretion “create a constitutionally
    impermissible risk of arbitrary outcomes that differ from county
    to county.” (People v. Myles (2012) 
    53 Cal.4th 1181
    , 1224.)
    “The language ‘ “so substantial” ’ and ‘warrants’ ” in
    CALJIC No. 8.88 “is not impermissibly vague.” (People v.
    Romero and Self (2015) 
    62 Cal.4th 1
    , 56.) “Use of the adjectives
    ‘extreme’ and ‘substantial’ in section 190.3, factors (d) and (g) is
    constitutional.” (People v. Dement (2011) 
    53 Cal.4th 1
    , 57.)
    “The federal constitutional guarantees of due process and
    equal protection, and against cruel and unusual punishment
    [citations], do not require intercase proportionality review on
    appeal.” (People v. Mai (2013) 
    57 Cal.4th 986
    , 1057.) We do
    perform intracase review, but Travis does not request such
    review here. (See People v. Landry (2016) 
    2 Cal.5th 52
    , 125.)
    “ ‘[C]apital and noncapital defendants are not similarly situated
    and therefore may be treated differently without violating’ a
    defendant’s right to equal protection of the laws, due process of
    law, or freedom from cruel and unusual punishment.” (People v.
    Carrasco (2014) 
    59 Cal.4th 924
    , 971.)
    Travis’s citation to statistics not based on the record, “even
    if properly before us, do[es] not establish that our review of
    defendant’s appeal specifically, or of all automatic appeals in
    general, has been affected by ‘political considerations,’ resulting
    in a denial of his right to due process. (SeePeople v. Kipp (2001)
    
    26 Cal.4th 1100
    , 1140–1141 [
    113 Cal.Rptr.2d 27
    , 
    33 P.3d 450
    ].)”
    (People v. Lightsey (2012) 
    54 Cal.4th 668
    , 732.) “One under
    judgment of death does not suffer cruel and unusual
    188
    PEOPLE v. SILVERIA and TRAVIS
    Opinion of the Court by Groban, J.
    punishment by the inherent delays in resolving his appeal.”
    (People v. San Nicolas (2004) 
    34 Cal.4th 614
    , 677.) “ ‘The death
    penalty as applied in this state is not rendered unconstitutional
    through operation of international law and treaties.’ ” (People v.
    Jackson (2016) 
    1 Cal.5th 269
    , 373.)
    13. Cumulative Prejudice
    Defendants contend the cumulative effect of penalty phase
    error requires us to reverse the death judgments. We have
    found error, but no prejudice, in the trial court’s instruction to
    certain penalty retrial prospective jurors in the language of
    CALJIC No. 1.00. (See ante, pt. II.B.7.b.) Likewise, we have
    assumed error but found no prejudice in other claims raised by
    defendants. We further conclude that this error and the
    assumed errors are not prejudicial when considered
    cumulatively.
    III. DISPOSITION
    For the reasons above, we affirm the judgments.
    GROBAN, J.
    We Concur:
    CANTIL-SAKAUYE, C. J.
    CHIN, J.
    CORRIGAN, J.
    LIU, J.
    CUÉLLAR, J.
    KRUGER, J.
    189
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion People v. Silveria and Travis
    __________________________________________________________________________________
    Unpublished Opinion
    Original Appeal XXX
    Original Proceeding
    Review Granted
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S062417
    Date Filed: August 13, 2020
    __________________________________________________________________________________
    Court: Superior
    County: Santa Clara
    Judge: Hugh Mullin III
    __________________________________________________________________________________
    Counsel:
    Michael Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme Court,
    John Fresquez, Timothy Foley, Jessica K. McGuire and Kristin Traicoff, Deputy State Public Defenders,
    for Defendant and Appellant Daniel Todd Silveria.
    Mark E. Cutler, under appointment by the Supreme Court, for Defendant and Appellant John Raymond
    Travis.
    Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
    Assistant Attorneys General, Jeffrey M. Laurence, Assistant Attorney General, Alice B. Lustre and Arthur
    P. Beever, Deputy Attorneys General, for Plaintiff and Respondent.
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    Timothy Foley
    Deputy State Public Defender
    770 L Street, Suite 1000
    Sacramento, CA 95814
    (916) 322-2676
    Mark E. Cutler
    P.O. Box 172
    Cool, CA 95614-0172
    (530) 885-7718
    Arthur P. Beever
    Deputy Attorney General
    455 Golden Gate Ave., Suite 11000
    San Francisco, CA 94102-3664
    (415) 510-3761