People v. Torres ( 2020 )


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  •         IN THE SUPREME COURT OF
    CALIFORNIA
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    ALFRED FLORES III,
    Defendant and Appellant.
    S116307
    San Bernardino County Superior Court
    FVA-015023
    May 4, 2020
    Justice Kruger authored the opinion of the Court, in which
    Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, and
    Groban concurred.
    Justice Liu filed a concurring and dissenting opinion, in which
    Justice Cuéllar concurred.
    PEOPLE v. FLORES
    S116307
    Opinion of the Court by Kruger, J.
    A jury found defendant Alfred Flores III guilty of the first
    degree murders of Ricardo Torres, Jason Van Kleef, and
    Alexander Ayala. (Pen. Code, § 187, subd. (a).) It found true the
    special circumstance allegation of multiple murder (id., 190.2,
    subd. (a)(3)), as well as the sentence enhancement allegations
    that defendant had personally discharged a firearm to commit
    each murder (id., § 12022.53, subd. (d)). Following the penalty
    phase, the jury returned a death verdict, and the trial court
    entered a judgment of death. This appeal is automatic. (Cal.
    Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We
    affirm.
    I. BACKGROUND
    A. Guilt Phase
    Over the course of three consecutive days in March 2001,
    the bodies of three teenage boys were discovered at three
    separate locations in San Bernardino County. The victims were
    subsequently identified as Torres, Van Kleef, and Ayala.
    1. Evidence
    a. Discovery of Torres’s Body
    After dark on March 19, 2001, Anita Rita Saldana and her
    teenage daughter, Sheila Leyerly, were passengers in a car
    driving uphill on Lytle Creek Road toward Lytle Creek.
    Saldana, sitting in the front passenger seat, noticed a Chevrolet
    Astro van parked facing downhill in a dirt pull-off area on the
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    opposite side of the two-lane road. According to Saldana, three
    or four Latino men stood outside, by the side of the van facing
    Lytle Creek Road. One appeared to her to be about 40 years old.
    It looked like they were drinking. One of the men was wearing
    an oversized white T-shirt.
    Approximately 15 minutes later, Saldana and Leyerly
    traveled in their car back toward where they had seen the van.
    When they passed the area where the van had been parked,
    Leyerly spotted a white tennis shoe. Saldana’s husband, who
    was driving, pulled over and shined the car’s headlights, which
    illuminated a dead body. Saldana and Leyerly both recognized
    the victim as one of the people they had seen standing by the
    van in that same area 15 minutes earlier. Saldana told police
    she thought the victim had been standing next to the man
    wearing the white T-shirt.
    The victim was 15-year-old Ricardo Torres. Torres had
    been shot seven times, including twice in the back of the head.
    Crime scene personnel found a pair of eyeglasses, a plastic Pepsi
    bottle, a cigarette butt, multiple nine-millimeter shell casings,
    and one live round near Torres’s body. No fingerprints were
    found on any of these items. Crime scene personnel also noted
    and photographed tire tracks and shoe prints near the body.
    The presence of shell casings and blood pooling underneath the
    body suggested Torres had been shot at the scene.
    b. Discovery of Van Kleef’s Body
    Shortly after midnight on March 20, 2001, Tamara
    Phoenix was returning a tractor trailer to the trucking yard
    where she worked on Willow Avenue in Rialto. As she drove up
    the yard’s dark driveway, her headlights revealed a dead body.
    Phoenix called the police.
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    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    The body belonged to 18-year-old Jason Van Kleef. Van
    Kleef had been shot once in the back of the head at close range.
    The size of the wound suggested a larger caliber weapon, such
    as a .38-caliber, .357-caliber, or nine-millimeter handgun. Van
    Kleef was wearing Etnies tennis shoes. Etnies-pattern shoe
    prints had been found at the Torres murder scene. Van Kleef’s
    body was on top of a size XXL Stafford-brand white T-shirt and
    under a thin blue sheet. There were no bullet casings or signs
    of struggle at the scene, which suggested to investigators that
    Van Kleef had been killed elsewhere and then moved to where
    he was found. Crime scene personnel noted and photographed
    tire tracks arcing toward Van Kleef’s body.
    c. Discovery of Ayala’s Body
    At approximately 6:40 a.m. on March 21, 2001, Brenda
    Horton was driving her children to school when she noticed a
    body on the side of Lytle Creek Road.        The body was
    approximately two-tenths of a mile from the location where
    Saldana and Leyerly had found Torres’s body. Horton’s son
    called 911.
    The body belonged to 17-year-old Alexander Ayala.
    Despite cold weather, Ayala was found wearing only a white
    tank top and blue denim jeans. He had been shot five times,
    including twice in the head. Crime scene personnel found nine-
    millimeter cartridge casings and a fired bullet in a pool of blood.
    They also noted and photographed tire tracks curving toward
    the location where they believed Ayala had been shot.
    d. Connection Between Victims and Defendant
    Police investigation revealed all three victims were friends
    of 17-year-old Andrew Mosqueda, a member of the El Monte
    Trece gang. Mosqueda and his friends regularly spent time at
    3
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    an apartment on Linden Avenue in Rialto. The apartment was
    rented by Mosqueda’s aunt, Carmen Alvarez, and her husband,
    Abraham Pasillas. Alvarez and Pasillas were also members of
    the El Monte Trece gang. They claimed they were not active in
    the gang at the time of the murders but admitted to associating
    with El Monte Trece gang members and attending gang
    gatherings.
    Defendant was also a member of the El Monte Trece gang.
    He had been “jumped into” the gang at a young age and was
    known as either “Casper” or “Wizard.” He was friends with
    Alvarez and Pasillas. Starting in early 2001, he frequently
    stayed the night at their apartment. He kept some personal
    belongings in the master bedroom closet.
    According to Alvarez, Pasillas, and Mosqueda, defendant
    sought to recruit new members to El Monte Trece, including
    Mosqueda and his friends. Pasillas told defendant he wanted
    no part in any recruitment effort, and Alvarez told defendant
    that Mosqueda and his friends were not “gang member types.”
    Defendant nonetheless successfully recruited Mosqueda.
    Mosqueda was given a gang name (“Apache”) and started taking
    orders from defendant.
    Torres, Van Kleef, and Ayala were not members of El
    Monte Trece. Van Kleef and Ayala had no interest in gang
    membership. Torres had agreed to join the gang but then did
    not attend his jumping-in ceremony. According to Mosqueda,
    this “disappointed” defendant. Mosqueda claimed to have
    attended the jumping-in ceremony in Torres’s stead.
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    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    e. Torres’s Murder
    Mosqueda and Alvarez both claimed to have been present
    when defendant killed Torres. They testified under grants of
    use immunity.
    On the evening of March 19, 2001, defendant, Mosqueda,
    Van Kleef, Torres, Ayala, and another friend, Erick Tinoco, were
    at Alvarez’s apartment. At some point, defendant suggested
    they take a ride to Lytle Creek in Alvarez’s Astro van. Privately,
    defendant told Mosqueda to put a gun in the van; he did not say
    why. Defendant handed Mosqueda a rifle wrapped in a towel
    and Mosqueda put it in the back of the van.
    With Alvarez as their driver, defendant, Mosqueda,
    Torres, and Van Kleef entered the van. Tinoco and Ayala left
    separately. With the four boys in the van, Alvarez drove to an
    ampm convenience store where she purchased beer.
    Alvarez then drove up Lytle Creek Road before pulling
    over into a dirt pull-off area. Everyone except Alvarez got out
    and began drinking beer by the back of the van. Mosqueda and
    Van Kleef chatted, while Torres and defendant had a separate
    conversation. Mosqueda heard defendant say to Torres, “Hey,
    don’t you trust me?” Torres put his arm around defendant.
    Defendant suddenly shot Torres in the stomach and continued
    to shoot Torres after he fell to the ground.
    Defendant, Mosqueda, and Van Kleef returned to the van,
    and Alvarez started driving. Alvarez testified that defendant
    was holding what looked like a pistol when he returned to the
    van. Alvarez dropped defendant and Van Kleef off near her
    apartment, then drove Mosqueda to his home. Defendant and
    Van Kleef were at Alvarez’s apartment when she returned. Van
    Kleef then left the apartment; defendant followed within a few
    5
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    minutes, holding Alvarez’s car keys. Defendant returned after
    about an hour. He told her that “he had gotten into an argument
    or something and . . . somebody broke the window” of her van on
    the front passenger’s side; she and Mosqueda both saw that the
    window was damaged. Mosqueda described the damage as a
    “bullet hole.”
    Defendant followed Alvarez around throughout the next
    day and threatened to harm her family. She testified she
    thought defendant would hurt her or her family if she called the
    police. Around 11:00 p.m. that night, defendant again borrowed
    Alvarez’s van and left for about an hour. Ayala was found early
    the next morning, shot on the side of the road about two-tenths
    of a mile from where Torres was found. Ayala was last seen by
    his sister at their house around 11:00 p.m.; he was dressed for
    bed and said he was in for the night.
    After the police started investigating the murders,
    defendant left the United States for Mexico. He reportedly was
    staying at the home of one of Alvarez’s relatives. Detectives
    traveled to Mexico to find defendant, the van, and the murder
    weapon. They did not locate defendant but saw the van, which
    was later burned.
    On a second trip to Mexico, detectives traveled with
    Alvarez’s mother, Maria Jackson, who was helping with the
    investigation. The detectives and Jackson there met with
    Jackson’s nephew, who said he had the murder weapon—a nine-
    millimeter handgun. Jackson paid her nephew $100 for the
    handgun, and the detectives reimbursed her. The gun was in a
    plastic bag, but two of the detectives removed it briefly to check
    if it was loaded. One of these detectives was a Mexican
    detective, Trini Cambreros, who was assisting in the
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    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    investigation. Jackson said she told him his fingerprints would
    now be all over the gun. Then, according to Jackson, Cambreros
    “got a blanket, a sheet that was on the bed, and wipe [sic] it off
    and put it back in the plastic bag and put it on my purse.”
    Criminalist Kerri Heward later testified for the prosecution that
    the nine-millimeter handgun recovered from Mexico matched
    bullets found at the Ayala and Torres crime scenes.
    Defendant was later arrested trying to cross the border
    from Mexico into the United States. He used a false name, but
    agents discovered his identity by running his fingerprints. A
    border patrol agent asked defendant if he was “the Wizard.” He
    replied, “You guys got me. You found me out . . . .”
    2. Arguments
    The prosecution’s theory was that defendant killed Torres
    for refusing to join the gang. Then defendant killed Van Kleef
    because he witnessed the Torres murder. Defendant likewise
    killed Ayala to prevent him from implicating defendant in the
    Torres murder; the prosecution theorized that defendant was
    concerned Ayala had learned about the murder from his good
    friend Mosqueda, who had also witnessed the murder but was a
    member of the gang.
    The defense argued defendant was a scapegoat and did not
    shoot the three boys. Pasillas, Alvarez, and Mosqueda—all of
    whom had testified against defendant—were instead to blame.
    The defense argued Alvarez and Pasillas were the gang
    members in control and that Pasillas or Mosqueda shot the boys.
    The jury convicted on all three counts.
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    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    B. Penalty Phase
    1. Aggravating Evidence
    At the penalty phase, the prosecution presented evidence
    that defendant had committed multiple crimes unrelated to the
    three murders: that he had brandished a gun while driving by
    a birthday party; assaulted a correctional counselor while a
    ward at a youth correctional facility; participated in the nonfatal
    shooting of his former girlfriend; stabbed his sister’s boyfriend
    with an ice pick; and committed two armed robberies with other
    El Monte Trece gang members, during which innocent people
    were shot. Also, while he was in custody awaiting trial in this
    case, deputies found defendant with a “slashing type weapon”—
    a toothbrush with a razor attached.
    The aggravation case also included evidence that
    defendant had committed another murder, that of Mark Jaimes.
    Jaimes’s body was found in the trunk of a car belonging to Rick
    Milam. Milam had hired defendant’s mother as a prostitute and
    was with her at a motel when his car disappeared from the
    parking lot. Jaimes’s body was discovered when the car was
    recovered.
    Lieutenant Roderick Kusch of the Los Angeles Police
    Department, who investigated the Jaimes murder, conducted an
    interview with defendant. A videotape of that interview was
    played for the jury.
    During the interview, defendant said he went to the motel
    room where his mother lived and found Jaimes there, seemingly
    taking drugs. Defendant asked him to leave but he would not
    leave and was “disrespecting” and “coming at my mom.”
    Defendant told Kusch: “I murdered him ey. I did it. All right?
    And I enjoyed doing it ay. I’m gonna tell you why, because it
    8
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    was defending my mother.” Defendant later said, “I pulled out
    my gun and I blew his fucking head off ay.”
    The prosecution also introduced evidence of the impact of
    the victims’ deaths on the Torres, Van Kleef, and Ayala families.
    Torres’s sister testified that her brother was “very smart” and a
    “[v]ery happy boy,” who “loved taking pictures,” and their father
    testified about how his son’s death had “destroyed the family.”
    Van Kleef’s sister testified about how hard it was not having him
    around for holidays; their father spoke about Van Kleef’s dream
    to serve in the military and as a firefighter; and their mother
    testified about how her son “thought a lot about people” and
    “wanted to help people” and about how difficult it has been for
    her and her family since his death. Ayala’s sister said Ayala
    “always had a smile on his face,” “was really smart” and
    “caring,” and “loved playing with his nieces and nephews”; he
    “wanted to go to school to become a computer technician.”
    Ayala’s mother testified Ayala “was [her] life.”
    2. Mitigating Evidence
    The defense presented evidence concerning prison
    conditions for prisoners sentenced to life without the possibility
    of parole. Retired San Quentin State Prison Associate Warden
    Anthony Casas testified that such prisoners are held at top
    security level 4, have little access to educational and work
    opportunities, and do not have conjugal visits. He also testified
    there had never been an escape from one of the new level 4
    institutions, where defendant would have been housed.
    Retired Police Officer Steven Strong testified as an expert
    on Hispanic street gangs in Los Angeles. He explained that
    many gang members come from families where the parents may
    be drug dealers, prostitutes, or incarcerated and that the gang
    9
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    provides food and other things for the members that they cannot
    get from their families. He testified that defendant had an
    unstable childhood and that the only time defendant had
    stability was when he joined the gang and started living with
    Pasillas at age 11 or 12. Defendant’s mother and father were
    both incarcerated, leaving defendant with “no other . . .
    examples to learn from or see.” Strong testified that, for
    defendant, the gang is “all he knows.”
    II. JURY SELECTION ISSUES
    A. Stipulated Prescreening of Jurors Based on
    Questionnaire
    Before jury selection began, the parties stipulated to a
    juror prescreening procedure that defendant now challenges on
    appeal. According to the agreed-upon procedure, prospective
    jurors first filled out a hardship questionnaire. The parties then
    stipulated that certain jurors could be excused for hardship
    based on their answers. Remaining jurors completed a different,
    case-specific questionnaire. The parties reviewed the case-
    specific questionnaires and stipulated that certain jurors should
    be removed for cause or hardship before voir dire. The court
    excused these jurors before the parties continued with jury
    selection.
    Defendant argues this prescreening procedure violated
    Code of Civil Procedure sections 222 and 223. Section 222,
    subdivision (a) requires courts to “randomly select the names of
    the jurors for voir dire, until the jury is selected or the panel is
    exhausted.” Section 223, subdivision (a) says, “[T]he trial judge
    shall conduct an initial examination of prospective jurors.”
    Finally, defendant invokes Civil Code section 3513, which
    provides: “Any one may waive the advantage of a law intended
    10
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    solely for his benefit. But a law established for a public reason
    cannot be contravened by a private agreement.” Defendant
    argues that sections 222 and 223 were enacted for a public
    reason, and his agreement to the prescreening procedure
    therefore should not have been given effect.
    Our cases have consistently rejected similar challenges to
    the excusal of jurors under similar mutually agreed-upon
    prescreening procedures. “A court may allow counsel to screen
    juror questionnaires and stipulate to juror dismissals.” (People
    v. Duff (2014) 
    58 Cal.4th 527
    , 540 (Duff); accord, e.g., People v.
    Booker (2011) 
    51 Cal.4th 141
    , 159.) Further, “a stipulation to
    the excusal of jurors forfeits any subsequent objection to their
    omission from the jury pool.” (Duff, at p. 540.)
    Here, by agreeing to the prescreening procedure he now
    challenges, defendant has forfeited the claim. (E.g., People v.
    Ervin (2000) 
    22 Cal.4th 48
    , 73.) In any event, the claim lacks
    merit. Contrary to defendant’s argument, neither Code of Civil
    Procedure section 222 nor section 223, subdivision (a) forbids
    the prescreening procedure employed in this case. Section 222
    requires random selection of prospective jurors for voir dire but
    says nothing about prescreening through a questionnaire.
    Section 223, subdivision (a), which requires the trial court to
    conduct an initial examination of prospective jurors, does not
    bar the court from exercising its discretion to allow counsel to
    prescreen jurors and stipulate to dismissals.         (People v.
    Benavides (2005) 
    35 Cal.4th 69
    , 88–89.)
    Defendant makes a number of related additional
    arguments, which we also reject. He argues the prescreening
    procedure allowed the parties “to trade discriminatory
    removal[s] of potential jurors,” as well as to create a jury not
    11
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    selected from a fair cross-section of the community. But
    defendant has not alleged that any of the stipulated removals
    were discriminatory, nor does he adequately explain how
    permitting him to stipulate to the dismissal of certain jurors
    could have undermined his right to trial by a jury selected from
    a fair cross-section of the community. Defendant also claims the
    prescreening procedure “frustrates the public policy requiring
    that voir dire be open to the public.” (See, e.g., Press-Enterprise
    Co. v. Superior Court of Cal. (1984) 
    464 U.S. 501
    , 508–509.) But
    voir dire in this case was open to the public; the trial court
    simply permitted the parties to stipulate to the removal of
    certain jurors based on their written questionnaire responses.
    Having agreed to this procedure, defendant may not now
    complain that it violated his right to a public trial. (See People
    v. Edwards (1991) 
    54 Cal.3d 787
    , 813.)
    B. Dismissal of Prospective Juror for Cause
    Defendant contends the trial court erred by excusing
    Prospective Juror S.M. for cause during the death-qualification
    portion of jury selection. Defendant contends the excusal of S.M.
    violated his state and federal constitutional rights to due
    process of law, to a fair and impartial jury, and to a reliable
    penalty verdict. (U.S. Const., 6th, 8th & 14th Amends.; Cal.
    Const., art. I, §§ 7, 15, 16, 17.) We discern no error.
    “ ‘A prospective juror in a capital case may be excluded for
    cause if his or her views on capital punishment “would ‘prevent
    or substantially impair the performance of his duties as a juror
    in accordance with his instructions and his oath.’ ” (Wainwright
    v. Witt (1985) 
    469 U.S. 412
    , 424 [
    83 L.Ed.2d 841
    , 
    105 S.Ct. 844
    ].)’ ” (People v. Rices (2017) 
    4 Cal.5th 49
    , 78.) “Both this
    court and the United States Supreme Court have cautioned that
    12
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    mere personal opposition to capital punishment is an
    insufficient basis on which to justify dismissal of a juror during
    jury selection.” (People v. Thompson (2016) 
    1 Cal.5th 1043
    , 1064
    (Thompson).) “ ‘[N]ot all who oppose the death penalty are
    subject to removal for cause in capital cases; those who firmly
    believe that the death penalty is unjust may nevertheless serve
    as jurors in capital cases so long as they state clearly that they
    are willing to temporarily set aside their own beliefs in
    deference to the rule of law.’ ” (People v. Jones (2017) 
    3 Cal.5th 583
    , 614 (Jones), quoting Lockhart v. McCree (1986) 
    476 U.S. 162
    , 176.)
    “That prospective jurors are not always clear in
    articulating their beliefs (or accurately assessing their ability to
    set aside those beliefs) is a difficulty trial and appellate courts
    frequently encounter in capital cases.” (Thompson, supra, 1
    Cal.5th at p. 1065.) “ ‘ “ ‘[I]n many cases, a prospective juror’s
    responses to questions on voir dire will be halting, equivocal, or
    even conflicting. Given the juror’s probable unfamiliarity with
    the complexity of the law, coupled with the stress and anxiety of
    being a prospective juror in a capital case, such equivocation
    should be expected.’ ” ’ ” (Ibid.) For this reason, a prospective
    juror’s bias against the death penalty need not be demonstrated
    with “ ‘unmistakable clarity.’ ” (Jones, supra, 3 Cal.5th at
    p. 615; see People v. Bramit (2009) 
    46 Cal.4th 1221
    , 1235
    (Bramit) [“ ‘ “many veniremen simply cannot be asked enough
    questions to reach the point where their bias has been made
    ‘unmistakably clear’; these veniremen 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” ’ ”].) “ ‘Instead, after examining the available evidence,
    which typically includes the juror’s written responses in a jury
    13
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    questionnaire and answers during voir dire, the trial court need
    only be left with a definite impression that the prospective juror
    is unable or unwilling to faithfully and impartially follow the
    law.’ ” (Jones, at p. 615, quoting Thompson, at p. 1066.)
    On appellate review, we recognize that “ ‘in assessing a
    prospective juror’s true state of mind, the trial court occupies a
    superior position vis-à-vis an appellate court, for the former
    court is able to consider and evaluate a juror’s demeanor during
    voir dire.’ ” (Jones, supra, 3 Cal.5th at p. 615; see also ibid.
    [“ ‘ “ ‘ “[A]ppellate courts recognize that 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” ’ ” ’ ”].) “ ‘Accordingly, the trial court’s ruling regarding
    the juror’s true state of mind is entitled to deference on appeal
    if supported by substantial evidence.’ ” (Ibid.; see Bramit,
    
    supra,
     46 Cal.4th at p. 1235.)1 Applying these principles, we
    conclude that substantial evidence supports the trial court’s
    decision to dismiss S.M. for cause.
    In his responses to the juror questionnaire, S.M.
    acknowledged he had reservations about imposing the death
    1
    Defendant argues that this approach is outdated and
    inconsistent with the United States Supreme Court’s holdings
    in Adams v. Texas (1980) 
    448 U.S. 38
     and Gray v. Mississippi
    (1987) 
    481 U.S. 648
    . The argument lacks merit. The Supreme
    Court has long emphasized deference to a trial court’s
    “determinations of demeanor and credibility” (Wainwright v.
    Witt, 
    supra,
     469 U.S. at p. 428; see Darden v. Wainwright (1986)
    
    477 U.S. 168
    , 178) and has continued to do so following Adams
    and Gray (see Uttecht v. Brown (2007) 
    551 U.S. 1
    , 9).
    14
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    penalty. When asked to select from among five responses the
    one that most clearly aligned with his view on the death penalty,
    S.M. chose, “I have doubts about the death penalty, but I would
    not vote against it in every case.” Elsewhere, S.M. indicated he
    had “moral[,] philosophical, or religious” objections to capital
    punishment and that his decisionmaking was “greatly”
    influenced by his moral preferences. He further wrote that the
    death penalty should be used “sparingly,” only “where an
    individual is beyond compunction,” and “for the most heinous of
    crimes.” And when asked to “list any biases you may have that
    could interfere with your ability to be an impartial juror if
    selected to sit on this case,” S.M. wrote: “Imposition of the death
    penalty.”
    Though S.M. indicated in response to one question that he
    believed the death penalty law in California is fair, in response
    to another he said he had “reservations about [the death
    penalty’s] effectiveness to deter crime, [and its] fairness.” And,
    despite having checked “[n]o” when asked whether he would be
    reluctant to state a death verdict in open court, he checked
    “[y]es” when asked whether he would be reluctant to vote for a
    sentence of death or personally sign the verdict form.
    Along with these reservations, however, S.M. expressed
    the view that he could faithfully follow the law. Indeed, he
    stated both that he would not automatically vote for life without
    the possibility of parole and that he could “weigh the evidence
    and the circumstances” to select a sentence. He further stated
    he could consider both the death penalty and life without parole
    as a “realistic and practical possibility” (underscoring omitted)
    for an individual found guilty of three separate killings, with the
    handwritten elaboration that the ultimate sentence rendered
    would “[d]epend[] on the degree of severity of the crime.”
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    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    When asked to elaborate on his views of the death penalty
    at voir dire, however, S.M. grew more equivocal about his ability
    to fairly apply the law. When questioned by the prosecutor, S.M.
    maintained he could be fair and impartial but said he would be
    “reluctant to impose the death penalty[,]” raised concerns
    regarding recent exonerations based on DNA evidence, and
    agreed that sitting on the jury would put him in a “moral
    dilemma.” When asked if his concerns might “carry over in the
    guilt portion of the trial,” he said it was “possible,” but “it would
    be hard to say,” since this was the first time he had been in such
    a situation.
    When questioned by the defense, S.M. continued to
    vacillate on his ability to follow the law as given and impose the
    death penalty. Although S.M. said he could “consider those
    different factors” per the court’s sentencing instructions and
    impose the death penalty in an “appropriate case,” he also stated
    he did not “know if [he] could in good conscience vote [for] the
    death penalty.” He expressed a belief that the death penalty is
    appropriate “for the most heinous of crimes” but acknowledged
    that he was “still in the process of soul searching” to determine
    “what that is.” When asked if he could impose the death penalty
    in a case involving a multiple murder special circumstance, he
    said: “I’m trying to decide whether I agree with if something is
    indeed a special circumstance, you know. I understand the law
    defines it one way, but I have to look within and decide whether
    I can use that factor in determining whether I can take
    someone’s life or vote that someone’s life be taken.”
    At the conclusion of defense counsel’s questioning, the
    prosecution challenged S.M. for cause. The trial court granted
    the challenge over defense objection “based on what [it] heard”
    during voir dire.
    16
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    The record reveals no error in the trial court’s
    determination that S.M.’s views on capital punishment would
    have substantially impaired his performance as a juror. When
    asked about his ability to set aside his personal views and follow
    the law, S.M. gave equivocal and inconsistent answers. At times
    he professed he could do so, but he also stated in his written
    questionnaire that “[i]mposition of the death penalty” was one
    of his “biases” that “could interfere” with his “ability to be an
    impartial juror.” When questioned further at voir dire, S.M.
    acknowledged he was not sure he could “in good conscience” vote
    for death and agreed that serving as a juror in a capital case
    would put him in “a moral dilemma.” Defendant argues that
    these responses demonstrate only that S.M. had reservations
    about the death penalty, not that he would face substantial
    difficulties in considering death as a potential option. This is
    one possible conclusion to be drawn from S.M.’s statements, but
    it is not the only possible conclusion. Another possible
    conclusion was that S.M. did “ ‘ “not know how [he would] react
    when faced with imposing the death sentence” ’ ” (Bramit,
    supra, 46 Cal.4th at p. 1235), but in the end he would not, “in
    good conscience,” realistically be able to consider voting in favor
    of death. (Compare, e.g., People v. Spencer (2018) 
    5 Cal.5th 642
    ,
    659 [affirming dismissal of juror who “mentioned his ‘reluctance
    about the death penalty’ as something which may affect his
    ability to be a juror or his participation as a juror in this trial”];
    People v. Wash (1993) 
    6 Cal.4th 215
    , 255 [affirming dismissal of
    juror who “initially denied she had any feelings about the death
    penalty that would affect her decision” but then “consistently
    responded, ‘I don’t know’ in answer to the question whether she
    was capable of voting for death”].)
    17
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Where, as here, a juror gives ambiguous responses, it is
    for the trial court to resolve that ambiguity in the first instance.
    In such cases we “ ‘defer to the trial court’s evaluation of a
    prospective juror’s state of mind, and such evaluation is binding
    on appellate courts.’ ” (People v. Roldan (2005) 
    35 Cal.4th 646
    ,
    696.) The trial court was in the best position to observe 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. (See People v. Clark (2011) 
    52 Cal.4th 856
    , 897 (Clark)
    [“Although at the end of the voir dire questioning L.C. expressed
    greater certainty concerning his ability to vote for the death
    penalty in an appropriate case, the court was entitled to find
    those assurances were severely undercut by his demeanor and
    his hesitant, inconsistent, and equivocal responses”]; People v.
    Watkins (2012) 
    55 Cal.4th 999
    , 1016 [inferring that trial court
    reached its conclusion based on juror’s demeanor and
    responses]; accord, e.g., Thompson, supra, 1 Cal.5th at p. 1070.)
    Given the trial court’s careful conduct of jury selection, we have
    no basis to doubt the trial court applied the appropriate
    standard in determining that S.M. was subject to excusal for
    cause. Even though S.M. also made other statements that,
    viewed in isolation, “ ‘might have warranted keeping [him] as [a
    juror],’ ” the record as a whole includes substantial evidence to
    support the trial court’s definite impression that S.M. would not
    be able to faithfully and impartially apply the law. (People v.
    Martinez (2009) 
    47 Cal.4th 399
    , 431 (Martinez); see People v.
    Thornton (2007) 
    41 Cal.4th 391
    , 414 (Thornton).) The record
    thus supports the court’s exercise of discretion in dismissing
    S.M. for cause.
    18
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    C. Alleged Unfairness in Applying Witt Standard
    Defendant contends the trial court failed to apply the Witt
    standard impartially and evenhandedly to both “pro-death” and
    “pro-life” prospective jurors and that the court thereby violated
    of his state and federal constitutional rights. (U.S. Const., 6th,
    8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17.) In
    particular, defendant alleges the court treated S.M., who had
    doubts about the death penalty, differently than it treated
    Prospective Jurors L.T., D.S., and S.T., who favored the death
    penalty. He maintains that the court selectively and leadingly
    questioned these “pro-death” jurors to rehabilitate them and did
    not accord the same treatment to S.M. Defendant argues the
    trial court’s conduct resulted in a jury “ ‘uncommonly willing to
    condemn a man to die.’ ” (Quoting Witherspoon v. Illinois (1968)
    
    391 U.S. 510
    , 521.) The argument lacks merit.2
    2
    The Attorney General asks us to reject defendant’s claim
    on the ground that it has been forfeited because defendant failed
    to make the same objection in the trial court. We have, however,
    previously exercised our discretion to address the merits of
    similar claims despite the defendant’s failure to object below.
    (See, e.g., Clark, supra, 52 Cal.4th at p. 902, fn. 10; Martinez,
    
    supra,
     47 Cal.4th at p. 439, fn. 8.) We will do so again here.
    To the extent defendant intends to separately challenge
    the trial court’s decision not to dismiss Prospective Jurors L.T.,
    D.S., and S.T. for cause, that claim has not been preserved.
    Generally speaking, to complain on appeal of a denial of a
    challenge for cause, a litigant must “exercise a peremptory
    challenge and remove the prospective juror in question,”
    “exhaust all of the peremptory challenges allotted by statute and
    hold none in reserve,” and “express to the trial court
    dissatisfaction with the jury as presently constituted.” (People
    v. Mills (2010) 
    48 Cal.4th 158
    , 186 (Mills); cf. People v. Black
    19
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    We agree with defendant that “trial courts should be
    evenhanded in their questions to prospective jurors during the
    ‘death-qualification’ portion of the voir dire, and should inquire
    into the jurors’ attitudes both for and against the death penalty
    to determine whether these views will impair their ability to
    serve as jurors.” (People v. Champion (1995) 
    9 Cal.4th 879
    , 908–
    909.) But trial courts have “ ‘broad discretion over the number
    and nature of questions about the death penalty.’ ” (Mills,
    
    supra,
     48 Cal.4th at p. 189.) We presume “the trial court
    formulated its questions based on the individual characteristics
    of each juror, including the juror’s questionnaire answers and
    in-court demeanor.” (Id. at p. 190.) “To second-guess these
    choices would encourage the trial court to engage in
    substantially the same questioning of all prospective jurors
    irrespective of their individual circumstance, something we
    have declined to do.” (Ibid., citing Thornton, 
    supra,
     41 Cal.4th
    at p. 425.) Accordingly, an argument “based solely on a
    numerical counting of questions” asked to “pro-death” and “pro-
    life” jurors “is not sufficient to establish a constitutional
    violation.” (People v. Navarette (2003) 
    30 Cal.4th 458
    , 487; see
    Mills, at p. 190, citing Thornton, at p. 425.)
    (2014) 
    58 Cal.4th 912
    , 920 (Black) [“When a defendant uses
    peremptory challenges to excuse prospective jurors who should
    have been removed for cause, a defendant’s right to an impartial
    jury is affected only when he exhausts his peremptory
    challenges and an incompetent juror, meaning a juror who
    should have been removed for cause, sits on the jury that decides
    the case”].) Here, defendant exercised peremptory challenges to
    remove each of the three jurors, but never asked for more
    challenges nor otherwise expressed dissatisfaction with the jury
    as constituted. Defendant therefore did not preserve this
    challenge to the trial court’s rulings for appellate review.
    20
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    In his effort to establish judicial bias, defendant points to
    the trial court’s questioning of three prospective jurors.
    Defendant claims the questioning of these three individuals
    demonstrates the court’s bias toward the death penalty. But
    three prospective jurors “constitutes an extremely limited
    sample of the trial court’s overall performance, thereby
    diminishing the probative value of the examples proffered by
    defendant to support the inference” that the court made a
    greater effort to rehabilitate pro-death penalty jurors.
    (Martinez, supra, 47 Cal.4th at p. 447.) Review of the record as
    a whole shows the trial court rehabilitated both “pro-death” and
    “pro-life” jurors and sometimes elected not to intervene because
    counsel’s     questioning     rendered      further    questioning
    unnecessary. The trial court on multiple occasions questioned
    prospective jurors who expressed reluctance about or opposition
    to the death penalty and determined they were fit to serve. On
    other occasions, the court declined to question prospective jurors
    who expressed leanings in favor of the prosecution and later
    dismissed them for cause at defendant’s request.3
    3
    For example, the trial court questioned the following
    prospective jurors, with the results indicated: D.J., denying the
    prosecution’s challenge for cause despite juror’s initial
    statement that she did not believe she could impose the death
    penalty; V.B., denying prosecution’s challenge for cause despite
    V.B.’s skepticism of the death penalty; T.P., excusing pro-law
    enforcement juror for cause; V.D., denying prosecution’s
    challenge for cause despite the appearance of an intent to hold
    the prosecution to a higher standard than beyond a reasonable
    doubt; S.C., dismissing prospective juror for cause after she said
    she believed the only appropriate penalty for three murders is
    death, despite her claim that she could follow the law; R.H.,
    denying the prosecution’s challenge for cause despite her
    21
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    But even if we focus exclusively on the three prospective
    jurors on whom defendant trains his attention, the record does
    not support defendant’s allegations of judicial bias. Having
    carefully reviewed the record of voir dire, we see no lack of
    evenhandedness or impartiality in the court’s questioning of
    L.T. and S.T. to clarify their ability to follow the law. The trial
    court did not question D.S., but we see nothing untoward in that
    decision either. In his written responses to the questionnaire,
    D.S. indicated a belief that the death penalty is appropriate
    when imposed on criminals who would kill again. When
    questioned further by both the defense and prosecution, D.S.
    stated he could consider both death and life without parole and
    that he would be as fair and impartial as possible. Given the
    general consistency of his answers to both attorneys during voir
    dire, the trial court evidently concluded there was no need to ask
    further questions to clarify D.S.’s views. In denying defendant’s
    challenge for cause, the trial court explained that “after both
    attorneys had an opportunity to ask [D.S.] in person about his
    feelings, he made it very clear he can remain open minded and
    fair and base his decision on what the evidence and the laws are
    and what he is instructed on.”
    Defendant argues that the trial court’s decision to excuse
    S.M., despite S.M.’s similar responses about impartiality, and
    statement that she would “need to be 100 percent” before
    imposing the death penalty or convicting defendant; R.B.,
    denying the prosecution’s challenge for cause, despite her
    statement that she could vote for death but could not announce
    it to defendant in open court; and J.D., denying the prosecution’s
    challenge for cause after J.D., who previously indicated he could
    not impose the death penalty based on the beyond a reasonable
    doubt standard, stated he could follow the law.
    22
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    without questioning S.M. further, demonstrates a lack of
    evenhandedness. But as discussed above, S.M.’s answers were
    equivocal and inconsistent. In response to the attorneys’
    questioning, S.M. at times indicated he was willing to consider
    both penalty options but also expressed substantial qualms
    about the possibility of imposing a sentence of death and
    questioned his own ability to accept the law’s determination
    about the crimes warranting a potential death sentence. The
    trial court, having observed both these responses and S.M.’s
    demeanor, acted within its discretion in concluding that “further
    questioning was not likely to render [S.M.] qualified to sit in a
    capital case.” (Mills, 
    supra,
     48 Cal.4th at p. 190; see Thornton,
    
    supra,
     41 Cal.4th at p. 423 [finding “nothing improper in the
    court’s explaining the law to the prospective juror, nor in its
    failing to engage in a similar dialogue with other prospective
    jurors whose voir dire did not give rise to the same concerns”].)
    In sum, we see no basis for defendant’s claim that the trial
    court disproportionately attempted to rehabilitate and retain
    jurors with pro-death penalty views. The record instead shows
    that the trial court carefully evaluated jurors on an individual
    basis.
    Although that conclusion suffices to dispose of defendant’s
    argument, we also note that defendant fails to support his claim
    that the trial court’s purported lack of evenhandedness in voir
    dire affected the fairness of the jury that sat on his case. None
    of the three “pro-death” jurors at issue served on the jury;
    defendant was able to remove all three by peremptory strike or
    stipulation. “If no biased or legally incompetent juror served on
    defendant’s jury, the judgment against him does not suffer from
    a federal constitutional infirmity . . . .” (Black, supra, 58 Cal.4th
    at p. 917.) Here, defendant fails to show that any empaneled
    23
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    jurors were biased in favor of death. He likewise fails to show
    that the trial court’s handling of Prospective Jurors L.T., D.S.,
    and S.T. undermined his constitutional right to an impartial
    jury.
    III. GUILT PHASE ISSUES
    A. Denial of Motion To Exclude Firearm Evidence
    or To Instruct Jury on State’s Bad Faith
    Destruction of Evidence
    During their investigation, San Bernardino detectives
    twice traveled to Mexico in search of defendant and evidence
    related to the homicides. On their second trip, Detectives Chris
    Elvert and Robert Acevedo were accompanied by Maria Jackson,
    Alvarez’s mother and Mosqueda’s grandmother. Jackson had
    told the detectives that her nephew, who lived in Mexico, could
    purchase from a third party the nine-millimeter handgun
    allegedly used in the homicides and deliver it to her. The
    detectives picked up Jackson in Southern California and drove
    across the border to Tijuana, where they met Cambreros, a
    Mexico-based detective. Jackson recalled that, before they all
    drove to meet her nephew, the three men discussed whether
    Cambreros should return the handgun to Mexican authorities
    and “go through some kind of paperwork for permission from the
    governments,” but they decided to retrieve it informally instead.
    The testimony at trial was uncontroverted that Elvert
    offered Jackson’s nephew $100 in cash for the handgun, but
    Jackson’s nephew refused to accept the money for fear that it
    was marked. Jackson’s nephew instead agreed to accept $100
    from Jackson, and Elvert later reimbursed her. Jackson, Elvert,
    and Acevedo all testified that Jackson’s nephew retrieved the
    handgun, which was in a plastic bag, and placed it in Jackson’s
    purse. At that point, however, their testimony diverged.
    24
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Jackson, who was called as a witness for the prosecution,
    testified that Acevedo pulled the handgun out of Jackson’s purse
    to see if it was loaded and then handed it to Cambreros, who
    “was handling it too and trying to see if it work[ed].” Jackson
    recalled telling Cambreros that “now the gun is going to have all
    kinds of fingerprints” on it, at which point Cambreros “got a
    blanket . . . and wipe[d] [the gun] off and put it back in the
    plastic bag and put it [in] my purse.” According to Jackson, the
    handgun then remained in her purse until she reached the
    border with Elvert and Acevedo.
    The detectives provided different accounts.     Elvert
    testified that the handgun remained in Jackson’s purse until
    “we came back to [the] United States and then myself and
    Acevedo took possession of that weapon.” He further testified
    that the handgun was never wiped down by Cambreros; but on
    redirect examination, he acknowledged that Cambreros “could
    have” touched the handgun even though he “did not see that.”
    Acevedo testified Jackson gave him the nine-millimeter
    handgun immediately before they crossed the border into the
    United States. He recalled that Cambreros “inspected” the
    handgun before it was placed in Jackson’s purse, but he said he
    never saw Cambreros wipe it down. On cross-examination,
    Acevedo reiterated that “[i]f [Cambreros] wiped the gun off, I
    didn’t see it.”
    At one point, Acevedo instructed Jackson not to mention
    Cambreros’s name to anyone, because Cambreros “did not want
    to be subpoenaed” in the United States. Acevedo testified he
    “could understand that” because “[i]t’s very difficult for officers
    to come across” the border. Acevedo also testified that, before
    25
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    returning to the United States, Elvert placed $100 in
    Cambreros’s pocket and said, “This is for your expenses.”
    The nine-millimeter handgun was later tested for DNA. A
    criminologist testified she identified DNA material from
    multiple people on the inner slide of the handgun. She
    compared the recovered material to DNA samples that had been
    collected from defendant, Pasillas, Alvarez, Mosqueda, Torres,
    Van Kleef, and Ayala. All of the tested individuals, including
    defendant, were excluded as possible contributors, except for
    Pasillas and Van Kleef. No useable fingerprints were found on
    the gun.
    Criminalist Kerri Heward also test-fired the handgun and
    compared the bullets and cartridge casings from the test-fire to
    those found at the crime scenes. She ultimately determined that
    the cartridge cases from the Torres and Ayala crime scenes came
    from the nine-millimeter handgun retrieved in Mexico.
    Defendant filed a motion to dismiss. He also moved to
    suppress the handgun, any testimony as to its use and recovery,
    and the ballistics evidence comparing the handgun and
    recovered casings. In the alternative, defendant asked that the
    jury be instructed on the government’s bad faith destruction of
    evidence. He claimed the police manipulated and destroyed
    evidence, as well as violated the Mutual Legal Assistance Treaty
    with Mexico. And he argued the destroyed evidence would have
    been exculpatory because fingerprints on the handgun could
    have excluded him and instead inculpated Pasillas, Alvarez, or
    Mosqueda. Had the detectives recovered the handgun through
    formal channels, defendant argued, Cambreros would have had
    no reason to wipe down the handgun, and more prints would
    26
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    have been found tying the alleged murder weapon to other
    suspects.
    On appeal, defendant challenges the court’s denial of this
    motion. We view the evidence in the light most favorable to the
    trial court’s ruling and review its decision for substantial
    evidence. (People v. Montes (2014) 
    58 Cal.4th 809
    , 837; People
    v. Roybal (1998) 
    19 Cal.4th 481
    , 510 (Roybal).)
    The principles that guide our analysis are well
    established. Law enforcement agents have a constitutional duty
    to preserve evidence, but that duty is limited to “evidence that
    might be expected to play a significant role in the suspect’s
    defense.” (California v. Trombetta (1984) 
    467 U.S. 479
    , 488.) To
    reach this standard of “constitutional materiality,” the “evidence
    must both possess an exculpatory value that was apparent
    before [it] was destroyed, and be of such a nature that the
    defendant would be unable to obtain comparable evidence by
    other reasonably available means.” (Id. at p. 489; accord, People
    v. Carter (2005) 
    36 Cal.4th 1215
    , 1246.)
    The defendant bears a higher burden to establish a
    constitutional violation when “no more can be said” of the
    evidence “than that it could have been subjected to tests, the
    results of which might have exonerated the defendant.”
    (Arizona v. Youngblood (1988) 
    488 U.S. 51
    , 57 (Youngblood).) In
    such cases, “unless a criminal defendant can show bad faith on
    the part of the police, failure to preserve potentially useful
    evidence does not constitute a denial of due process of law.” (Id.
    at p. 58; accord, Duff, supra, 58 Cal.4th at p. 549.) The
    assessment of bad faith “must necessarily turn on the police’s
    knowledge of the exculpatory value of the evidence at the time
    it was lost or destroyed.” (Youngblood, at p. 57, fn. *.)
    27
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    We have had several occasions to consider the
    constitutional materiality of fingerprint evidence that law
    enforcement fails to preserve. (E.g., Roybal, 
    supra,
     
    19 Cal.4th 481
    ; People v. DePriest (2007) 
    42 Cal.4th 1
    ; People v. Medina
    (1990) 
    51 Cal.3d 870
    .) In Roybal, the defendant claimed the
    prosecution destroyed exculpatory evidence when it lost a
    doorjamb that was photographed and removed from the crime
    scene after an “ ‘orangish-red’ ” print was found on it. (Roybal,
    at p. 498.) Witnesses for both sides testified that the print, as
    captured in the photograph, did not match the defendant’s
    fingerprints. On appeal, the defendant argued he was deprived
    of the opportunity to inspect the doorjamb and enhance the
    print, which he claimed “ ‘was believed to have been made by
    the person who committed the homicide or by a person
    involved.’ ” (Id. at p. 508.) But we held there was no discernable
    exculpatory potential in the print at the time the doorjamb
    disappeared. Simply put: “[T]he print may or may not have
    been defendant’s and may or may not have been the
    perpetrator’s.” (Id. at p. 510; see also DePriest, at p. 41
    [exculpatory value of fingerprints not apparent when the
    prosecution failed to retain the victim’s car, which contained
    “three unidentified fingerprints that could have been made by
    . . . the person who supposedly killed [the victim] and stole her
    car”]; Medina, at p. 893 [fingerprint on water bottle at crime
    scene was not constitutionally material because the investigator
    “could not know at the time the prints were taken whether, or
    to what extent” they matched the defendant’s].)
    Similarly here, any potentially exculpatory value in prints
    (or DNA) on the nine-millimeter handgun would not have been
    apparent at the time Cambreros was said to have wiped it
    28
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    down.4 Like the fingerprint evidence destroyed or lost in
    Roybal, DePriest, and Medina, any prints removed from the
    handgun “may or may not have been defendant’s and may or
    may not have been the perpetrator’s.” (Roybal, 
    supra,
     19
    Cal.4th at p. 510.) This is thus a case in which “no more can be
    said” than that the handgun “could have been subjected to tests,
    the results of which might have exonerated the defendant.”
    (Youngblood, 
    supra,
     488 U.S. at p. 57.)
    To establish a due process violation, defendant therefore
    must prove that the police acted in bad faith. (Youngblood,
    
    supra,
     488 U.S. at p. 57; Duff, supra, 58 Cal.4th at p. 549.)
    Defendant’s primary argument is that bad faith is shown by the
    detectives’ failure to follow the procedures set forth in the
    Mutual Legal Assistance Treaty Between the United States and
    Mexico (Dec. 9, 1987, T.I.A.S. No. 91-503 (eff. May 3, 1991)
    (MLAT)).
    The MLAT generally provides for mutual legal assistance
    between the United States and Mexico in criminal matters,
    including “the prevention, investigation and prosecution of
    crimes.” (MLAT, supra, art. 1, par. 1.) It sets forth procedures
    by which either country can request assistance from the other,
    including requests to take testimony, provide “documents,
    4
    Like the trial court, we assume without deciding that
    Cambreros wiped down the handgun, as Jackson testified. We
    also accept defendant’s argument that Cambreros was acting as
    an agent of the San Bernardino Police Department when he
    wiped down the gun—a point the Attorney General has not
    contested. (See Dyas v. Superior Court (1974) 
    11 Cal.3d 628
    ,
    633, fn. 2 [exclusionary rule applies to a person acting “as an
    agent of the police or participat[ing] in a joint operation with law
    enforcement authorities”].)
    29
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    records and evidence,” execute searches and seizures, and
    “locat[e] or identify[] persons.” (Id., art. 1, par. 4, subds. (b), (g).)
    Although the MLAT provides formal mechanisms for requesting
    such assistance, it does not preempt nor otherwise impair other
    avenues for providing mutual assistance. (Id., art. 15 [“The
    Parties may also provide assistance pursuant to any bilateral or
    multilateral arrangement, agreement, or practice which may be
    applicable”].) And it states expressly that it “is intended solely
    for mutual legal assistance between the [sovereign] Parties”—
    not for the vindication of private rights. (Id., art. 1, par. 5; see
    also U.S. v. Rommy (2d Cir. 2007) 
    506 F.3d 108
    , 129 (Rommy)
    [“As the Supreme Court has long observed, absent explicit treaty
    language conferring individual enforcement rights, treaty
    violations are generally addressed by the signatory sovereigns
    through diplomatic channels”].)
    Although defendant does not argue that failure to follow
    the MLAT is in itself a basis for reversal, he does argue that the
    failure to follow the formal protocols of the MLAT is evidence of
    the detectives’ bad faith. He points to case law outside our
    jurisdiction to argue violating formal procedures governing the
    preservation of evidence constitutes bad faith. (See U.S. v.
    Montgomery (D.Kan. 2009) 
    676 F.Supp.2d 1218
    ; State v.
    Durnwald (Ohio Ct.App. 2005) 
    837 N.E.2d 1234
    ; U.S. v. Elliott
    (E.D.Va. 1999) 
    83 F.Supp.2d 637
     (Elliott).) In Elliott, the
    defendant argued the Drug Enforcement Administration (DEA)
    destroyed fingerprint evidence in bad faith when it failed to
    preserve glassware implicated in a drug crime after
    photographing the evidence and dusting it for prints. (Id. at
    p. 640.) The court agreed this destruction rose to the level of bad
    faith primarily because the DEA’s actions violated the agency’s
    procedures and regulations respecting the disposal of drugs. (Id.
    30
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    at p. 647.) The court noted that, although the failure to follow
    standard procedures does not “ipso facto establish bad faith,” it
    “is probative evidence of bad faith, particularly when the
    procedures are clear and unambiguous.” (Ibid.) In Montgomery,
    DEA agents were again found to have acted in bad faith, this
    time for destroying marijuana plants without photographing
    them, in violation of clear DEA policies. (Montgomery, at
    pp. 1244–1245.) Lastly, in Durnwald, a state trooper was found
    to have acted in bad faith when he erased dashboard video
    footage of a field sobriety test in violation of Ohio State Highway
    Patrol regulations. (Durnwald, at p. 1242.)
    Defendant compares the procedural violations in Elliott,
    Montgomery, and Durnwald to the San Bernardino detectives’
    failure to retrieve the firearm through the formal channels of
    the MLAT. But while it is true the detectives could have filed
    an official request for assistance through the treaty (MLAT,
    supra, art. 1, pars. 1, 4; id., art. 4), compliance with its
    procedures was not mandatory, as it was in the cases on which
    defendant relies; the treaty does not establish the exclusive
    means for recovering evidence located in the other country (id.,
    art. 15). (See Rommy, 
    supra,
     506 F.3d at p. 129 [interpreting
    similar provisions in Treaty on Mutual Assistance in Criminal
    Matters between the United States and the Netherlands and
    noting that “the treaty has no application to evidence obtained
    outside the MLAT process”].) Thus, in contrast to Elliott,
    Montgomery, and Durnwald, defendant cannot identify any
    violation of “clear and unambiguous” procedures based on the
    detectives’ failure to request assistance through the treaty.
    (Elliott, supra, 83 F.Supp.2d at p. 647.)
    Defendant also contends Cambreros demonstrated the
    requisite bad faith by intentionally wiping down the handgun.
    31
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    But by defendant’s own account, Cambreros wiped down the
    handgun only to avoid the possibility of being subpoenaed in the
    United States. Cambreros had no apparent reason to believe
    that by doing so, he was destroying any potentially exculpatory
    evidence, and defendant does not claim otherwise. (See People
    v. Webb (1993) 
    6 Cal.4th 494
    , 519 [due process rule is “intended
    to deter the police from purposefully denying an accused the
    benefit of evidence that is . . . known to be exculpatory”].)
    Cambreros’s action may have been negligent, but negligence
    does not establish constitutional bad faith. (U.S. v. Flyer (9th
    Cir. 2011) 
    633 F.3d 911
    , 916 [“Bad faith requires more than
    mere negligence or recklessness”]; e.g., Youngblood, 
    supra,
     488
    U.S. at p. 58 [failure to preserve clothing with semen samples
    was “at worst . . . negligent” and did not evince bad faith]; Webb,
    at p. 520 [no bad faith where law enforcement negligently left
    possible murder weapon in apartment after finding it during a
    search].) While Cambreros should not have wiped down the
    gun, defendant has not shown that Cambreros’s action
    amounted to a violation of due process. Because defendant has
    not carried this burden, we uphold the trial court’s denial of his
    motion to dismiss or suppress.
    Finally, defendant argues in passing that the trial court
    should have at least given an adverse inference jury instruction
    regarding the government’s destruction of evidence. We have
    held that such an instruction “need not be given where . . . no
    bad faith failure to preserve the evidence was shown.” (People
    v. Cook (2007) 
    40 Cal.4th 1334
    , 1351.) We therefore reject this
    argument as well.
    B. Admission of Gang Expert Testimony
    At trial, the prosecution offered testimony by Detective
    32
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Marty Penney, an expert in the culture, structure, and practices
    of criminal gangs in the El Monte area. He testified about the
    importance of gang recruitment, the significance of disrespect in
    gang culture, and the concept of “good murders.” In addition to
    this general testimony, Penney offered opinions about potential
    gang-related motives for hypothetical killings that closely
    tracked the facts of this case. Defendant contends Penney’s
    expert testimony was irrelevant (Evid. Code, § 1101), and
    unduly prejudicial (id., § 352).     He further argues that
    admission of the evidence violated his constitutional rights to
    due process and to reliable guilt and penalty verdicts. (U.S.
    Const., 8th & 14th Amends.; Cal. Const., art. I, § 15.) We review
    the trial court’s admission of expert testimony for abuse of
    discretion. (People v. Prince (2007) 
    40 Cal.4th 1179
    , 1222
    (Prince).)
    The Attorney General contends defendant forfeited his
    argument by failing to object to the expert testimony on
    precisely the same grounds as he does now. We disagree. “In a
    criminal case, the objection will be deemed preserved if, despite
    inadequate phrasing, the record shows that the court
    understood the issue presented.” (People v. Scott (1978) 
    21 Cal.3d 284
    , 290.) Here, before Penney testified, defendant filed
    a motion to exclude or limit gang-related testimony, arguing it
    was irrelevant, unduly prejudicial, and speculative.            In
    expressing its intention to deny the motion, the trial court
    acknowledged the defense’s objection “to the entire information
    about the defendant’s involvement with the gang and the theory
    that goes to the prosecution in terms of motive and intent . . . .”
    Later, when Penney took the stand, defense counsel again
    objected to answers that called for speculation or were beyond
    the subject matter of Penney’s expertise, including answers
    33
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    related to the perpetrator’s possible motives. This was adequate
    to preserve defendant’s challenge to Penney’s testimony. We
    will therefore address the challenge on the merits.
    California law authorizes qualified experts to offer opinion
    testimony if the subject matter is “sufficiently beyond common
    experience” such that the expert’s opinion “would assist the trier
    of fact.” (Evid. Code, § 801, subd. (a).) In general, “ ‘[t]he subject
    matter of the culture and habits of criminal street gangs . . .
    meets this criterion.’ ” (People v. Vang (2011) 
    52 Cal.4th 1038
    ,
    1044 (Vang).) When relevant to prove motive or identity, gang
    evidence is admissible “so long as its probative value is not
    outweighed by its prejudicial effect.” (People v. Williams (1997)
    
    16 Cal.4th 153
    , 193; see, e.g., People v. Ward (2005) 
    36 Cal.4th 186
    , 210 [allowing expert opinion explaining why the defendant
    may have entered rival gang territory and the defendant’s
    “likely reaction to language or actions he perceived as gang
    challenges”]; People v. Martinez (2003) 
    113 Cal.App.4th 400
    , 413
    [allowing expert testimony about “the concept of payback within
    gang culture,” where the defendant had previously been
    assaulted by rival gang members and several witnesses testified
    that the defendant made a gang-related comment before he shot
    the victim].)
    An expert opinion may be rendered in the form of
    responses to hypothetical questions that ask the expert to
    assume the truth of certain facts rooted in the evidence. (People
    v. Richardson (2008) 
    43 Cal.4th 959
    , 1008; accord, People v.
    Moore (2011) 
    51 Cal.4th 386
    , 405 (Moore); Vang, 
    supra,
     52
    Cal.4th at p. 1046.) But “the expert’s opinion may not be based
    ‘on assumptions of fact without evidentiary support [citation], or
    on speculative or conjectural factors.’ ” (Richardson, at p. 1008;
    accord, Moore, at p. 405; Vang, at p. 1046.)
    34
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Defendant argues the trial court erred by admitting
    Penney’s testimony on possible gang-related motives for the
    three homicides because the testimony was not grounded in the
    evidence and did not rest on the witness’s expert knowledge of
    gang culture, but rather on the witness’s personal view of the
    evidence. We discern no prejudicial error in the admission of
    the challenged testimony.
    In response to hypothetical questions, Penney opined it
    was possible Torres was killed because he had “some
    information” on defendant and because Torres showed
    disrespect by failing to “jump into the gang after giving his word
    that he would.” Penney acknowledged, however, that he had
    never heard of anyone being killed for refusing to join a gang.
    Penney also surmised that Van Kleef was killed because he
    witnessed the Torres homicide and posed a threat to the
    perpetrator, especially since Van Kleef was not committed to the
    gang lifestyle and rules. As for the Ayala killing, Penney
    testified Ayala would have shown disrespect to defendant by
    declining to join the gang despite defendant’s recruitment
    efforts, and that the manner of Ayala’s death reflected an
    “assassinat[ion]” similar to the Van Kleef killing. Drawing on
    his knowledge of gang culture, Penney concluded the three
    hypothetical killings would have been considered so-called “good
    murders.”
    As an initial matter, the parties agree there was no
    evidentiary support for part of Penney’s first opinion—that
    Torres could have been killed because he had “some
    information” on defendant. Defendant asserts, and the Attorney
    General does not dispute, that the reference to “some
    information” likely related to the prosecution’s theory that
    defendant believed Torres knew about the killing of Mark
    35
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Jaimes and shot Torres to prevent him from disclosing what he
    knew about the connection between defendant and Jaimes. But
    the trial court had excluded evidence of the uncharged Jaimes
    killing from the guilt phase of trial. The Attorney General
    therefore concedes that Penney’s reference to this possible
    motive was admitted in error.
    We accept the Attorney General’s concession but agree
    with the Attorney General that the error was harmless.
    Penney’s reference to “some information” was ambiguous.
    Before the reference, the prosecutor had said: “There is some
    information that Alfred Flores is angry with Ricardo Torres
    about that particular issue, that he didn’t show up to jump into
    the gang.” Given that the prosecutor used the same phrase
    (“some information”) to describe Torres’s failure to jump into the
    gang, and given that neither the prosecutor nor Penney specified
    the nature of the “some information” Torres might have had on
    the person who shot him, it is unclear what significance the jury
    could have attributed to the reference. The colloquy contained
    no hint of any theory that defendant believed Torres knew
    information about a prior homicide. After the prosecutor asked
    if it was possible Torres was killed because he had “some
    information” on defendant, Penney responded with a simple
    “[y]es,” and the prosecutor immediately pivoted back to the
    notion of disrespect and Torres’s failure to jump into the gang.
    Turning to the remainder of Penney’s testimony,
    defendant contends Penney’s opinions were inadmissible
    because there was no evidence that defendant personally asked
    the boys to join the gang or that criminal street gangs ordinarily
    kill people who refuse to join them.
    Based on our review of the record, we conclude Penney’s
    36
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    testimony was sufficiently grounded in the evidence to both
    satisfy evidentiary standards and pass constitutional muster.
    Defendant’s gang affiliation and philosophies were well
    established before Penney’s testimony.          Officer Loveless
    previously testified defendant admitted he was an active
    member of El Monte Trece and spoke about killing for a
    “righteous cause” as part of his philosophy of “street justice.”
    Loveless specifically recalled defendant’s statement that killing
    someone who demonstrated disrespect would be a “righteous
    cause according to gang culture.”         The prosecution also
    introduced evidence defendant was interested in expanding his
    gang’s footprint by recruiting young men, specifically friends of
    Mosqueda.5 Loveless recalled that during his interview of
    defendant, defendant explained he viewed himself as
    responsible for “school[ing]” Torres, Ayala, and Mosqueda in
    “the right way.”
    The prosecution also introduced evidence to support the
    hypothetical fact patterns it posed for each of the three killings.
    With respect to the Torres homicide, the prosecution elicited
    testimony from Mosqueda that Torres had backed out of his
    “jump[ing] in” ceremony and thereby declined to join defendant’s
    gang. Although Mosqueda’s testimony was inconsistent on this
    5
    Much of the evidence regarding defendant’s intent to
    expand the influence of El Monte Trece came from statements
    made by Mosqueda, whose testimony conflicted from one
    interview to the next. But there was additional supporting
    evidence, and the prosecution was not barred from offering
    hypothetical fact patterns based on some—but not all—of
    Mosqueda’s conflicting statements. The ultimate resolution of
    disputed facts underlying the prosecution’s hypothetical
    questions was a task assigned to the jury, which was properly
    instructed on its role.
    37
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    matter, he stated before the jury that defendant was
    “disappointed” by Torres’s failure to appear. Mosqueda also
    testified that immediately before Torres was shot, defendant
    said, “Hey, don’t you trust me?”          When combined with
    defendant’s own statements about disrespect, “street justice,”
    and “righteous” killings, the testimony about Torres’s failure to
    join the gang and defendant’s resulting disappointment, there is
    sufficient support for the hypothetical fact pattern presented to
    Detective Penney.
    Defendant argues Penney’s opinion on the hypothetical
    tracking the Torres killing was not based on Penney’s
    specialized knowledge of gang culture because he admitted he
    had never before heard of someone being killed for failing to join
    a gang. But an expert need not have personal experience with
    the precise fact pattern to offer an informed opinion that is
    “sufficiently beyond common experience” so as to “assist the
    trier of fact.” (Evid. Code, § 801, subd. (a); see also id., subd. (b)
    [expert opinion may be based on matter “made known to him at
    or before the hearing,” even if not “perceived by or personally
    known” to him].) Notably, Penney acknowledged the novelty of
    the hypothetical situation before the jury. And the jury was
    instructed it was not bound by the expert’s opinion, but rather
    should give it the weight it deserved and decide independently
    whether the facts assumed in the hypothetical questions had
    been proved. (See Vang, 
    supra,
     52 Cal.4th at p. 1050 [noting
    jury’s “critical role” in vetting expert’s opinion in response to
    hypothetical questions]; id. at p. 1051 [noting that “the
    defendant has the opportunity during argument to stress to the
    jury that an expert’s testimony is one opinion concerning the
    motivations of actors in a hypothetical scenario; the expert has
    no personal knowledge concerning the particular defendant’s
    38
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    state of mind”]; see also Prince, 
    supra,
     40 Cal.4th at p. 1227;
    Moore, 
    supra,
     51 Cal.4th at p. 406.) Because Penney’s opinion
    drew on his expertise about the significance of gang
    recruitment, jumping-in ceremonies, and disrespect, we
    disagree with defendant’s assertion that Penney offered a
    merely personal, rather than expert, view of the evidence.
    Applying our deferential abuse of discretion standard
    (Prince, supra, 40 Cal.4th at p. 1222), we also find there was an
    adequate evidentiary basis for the hypothetical fact patterns
    relating to the Ayala and Van Kleef killings. With respect to
    Ayala, the prosecution asked Penney if Torres’s killer would
    have wanted to kill Ayala because Ayala was not in the gang,
    was not loyal to the gang, and was close friends with Mosqueda.
    The hypothetical was adequately grounded in the evidence
    presented. Mosqueda testified that he and Ayala were close
    friends, that Ayala and defendant were not close friends, and
    that Mosqueda and Ayala had spent time together after Torres
    and Van Kleef were killed. Ayala was not in the gang, and
    Alvarez testified she had a conversation with defendant about
    trying to get “the boys” to join the gang, where she told
    defendant they were not gang types. The prosecution offered
    enough evidence that Ayala resisted efforts by defendant to
    recruit him into El Monte Trece to support its hypothetical
    questions to Penney.
    With respect to Van Kleef, the prosecution presented a
    hypothetical in which Van Kleef witnessed Torres’s murder, was
    not a gang member, and was shot in the back of the head. This
    hypothetical assumed facts fairly within the limits of the
    evidence. Jessica Ramirez, who was dating Ayala, testified she
    saw Van Kleef in Alvarez’s van on the night of Torres’s murder.
    Mosqueda similarly testified that Van Kleef was in the van that
    39
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    night and that he and Van Kleef were outside the van when
    defendant shot Torres. Etnies-pattern shoe prints—the kind of
    shoes Van Kleef was wearing—were found at the Torres murder
    scene. Multiple witnesses acknowledged that Van Kleef was not
    in the gang. And the forensic pathologist who examined Van
    Kleef’s body testified he was shot in the back of the head. It is
    true that the record did not include evidence drawing a line
    between Van Kleef as a potential witness to the crime and Flores
    therefore wanting him killed—which is to say, there are no
    statements by Flores expressing a desire to eliminate potential
    witnesses. We acknowledge the evidence of motive was not
    equally strong with respect to all three murders. But applying
    the usual standard of review, we conclude the trial court did not
    err by allowing the prosecution’s hypotheticals.
    The record not only provides adequate support for the
    hypotheticals, it also illustrates the trial court’s care in
    exercising its discretion to exclude questions lacking evidentiary
    support. The court repeatedly struck Penney’s testimony when
    it was not grounded in facts in evidence. (Cf. Prince, supra, 40
    Cal.4th at p. 1222 [recognizing trial court’s exclusion of
    improper expert testimony and careful attention to the issue].)
    Defendant further argues that even if the expert
    testimony was relevant and supported by the evidence, the trial
    court should have excluded it as unduly prejudicial. (See Evid.
    Code, § 352.) Trial courts must “carefully scrutinize” gang-
    related testimony before admitting it into evidence, because the
    content of such testimony “may have a highly inflammatory
    impact on the jury.” (People v. Williams, supra, 16 Cal.4th at
    p. 193.) The risk of injecting undue prejudice is particularly
    high in cases where the prosecution has not charged a gang
    enhancement and the probative value of the gang evidence is
    40
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    minimal. (People v. Hernandez (2004) 
    33 Cal.4th 1040
    , 1049.)
    Here, the prosecution did not charge defendant with a
    gang enhancement, and the expert’s testimony occasionally
    touched on inflammatory subjects; for example, Penney noted
    that the “ultimate” discipline for “rat[t]ing out another gang
    member” is death. But any prejudice resulting from this
    testimony was far outweighed by its probative value. Penney’s
    testimony about gang culture—particularly the importance of
    recruitment, the significance of disrespect, and the concept of
    “good murders”—was highly relevant to defendant’s possible
    motive for the charged crimes. Moreover, the trial court
    properly exercised its discretion in limiting the scope of the
    expert’s testimony to exclude any mention of specific crimes
    committed by other members of El Monte Trece. The trial court
    did not abuse its discretion in admitting the expert’s testimony.
    C. Alleged Prosecutorial Misconduct
    Defendant contends the prosecutor committed misconduct
    by misstating the evidence during her opening statement and
    eliciting inadmissible hearsay when questioning a witness, in
    violation of his rights to confrontation, due process, and a
    reliable guilt and penalty determination. (U.S. Const., 6th, 8th,
    & 14th Amends.; Cal. Const., art. I, § 15.)
    Defendant asserts there were two instances of
    prosecutorial misconduct at the guilt phase. First, he points to
    the prosecutor’s remark during her opening statement that
    defendant admitted taking the nine-millimeter handgun to
    Mexico with him. Because this statement was not borne out by
    the evidence at trial—witness testimony revealed that
    defendant admitted to taking a .22-caliber rifle to Mexico but
    not the nine-millimeter handgun—defendant claims the
    41
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    prosecutor improperly attested to an otherwise unsupported
    material issue of fact. Second, defendant points to the
    prosecutor’s questioning of Maria Jackson regarding the
    interaction Jackson had with her nephew, from whom she
    purchased the nine-millimeter handgun in Mexico. In response
    to one of the prosecutor’s questions, Jackson relayed hearsay
    that her nephew recognized a picture of defendant as “the man
    that was here.” Defendant argues the prosecutor deliberately
    solicited inadmissible hearsay to fill an evidentiary gap as to
    how the gun arrived in Mexico. Both these incidents, defendant
    claims, rendered the trial fundamentally unfair by introducing
    damaging evidence without affording him his right to confront
    the witnesses against him.
    The United States Constitution requires reversal when a
    prosecutor makes improper remarks that “ ‘so infected the trial
    with unfairness as to make the resulting conviction a denial of
    due process.’ ” (Darden v. Wainwright, supra, 477 U.S. at
    p. 181.) “ ‘Conduct by a prosecutor that does not reach that level
    nevertheless [can] constitute[] misconduct under state law, but
    only if it involves the use of deceptive or reprehensible methods
    to persuade the court or jury.’ ” (People v. Armstrong (2019) 
    6 Cal.5th 735
    , 795.)
    “A defendant’s conviction will not be reversed for
    prosecutorial misconduct . . . unless it is reasonably probable
    that a result more favorable to the defendant would have been
    reached without the misconduct.” (People v. Crew (2003) 
    31 Cal.4th 822
    , 839 (Crew).) To preserve a claim of misconduct for
    appeal, a defendant must make a timely objection and ask the
    court to admonish the jury, unless an objection would have been
    futile and a request for admonition ineffective. (People v. Hill
    (1998) 
    17 Cal.4th 800
    , 820 (Hill).)
    42
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Defendant has forfeited his challenge to the first of the
    claimed instances of prosecutorial misconduct.                 He
    acknowledges his failure to object to the prosecutor’s remark
    during her opening statement and offers no persuasive reason
    to excuse this forfeiture. The remark was made at the very
    beginning of the trial, and there is no reason to suspect that
    corrective action would have been futile. (Cf. People v. Friend
    (2009) 
    47 Cal.4th 1
    , 29 (Friend) [failure to object excused “when
    the ‘misconduct [is] pervasive, . . . and the courtroom
    atmosphere was so poisonous that further objections would have
    been futile’ ”]; Hill, 
    supra,
     17 Cal.4th at p. 822 [same].)
    Defendant did successfully object to the prosecutor’s
    questioning of Jackson, but he did not object on misconduct
    grounds or request a specific admonition to cure any harm.6
    Again, defendant fails to persuade that such a request would
    have been ineffective. (See People v. Frye (1998) 
    18 Cal.4th 894
    ,
    969.) He insists the harm of Jackson’s testimony could not have
    been undone because without the hearsay statement, “there was
    no credible evidence to establish that [defendant] brought the
    gun to Mexico, or that he sold it to [Jackson’s nephew] or anyone
    else.” But this argument places too much weight on Jackson’s
    testimony, which communicated only that her nephew said
    6
    Several days after Jackson’s testimony, defendant
    requested Jackson’s answer be formally stricken from the
    record. The court erroneously believed it had ordered the
    comment stricken when it sustained defendant’s objection in
    front of the jury, but the court nonetheless granted defendant’s
    subsequent request to strike the testimony. Defendant never
    requested a specific admonition to the jury.
    43
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    defendant “was here”—a fact supported by ample other
    evidence.7
    In any event, regardless of whether defendant forfeited
    either or both asserted errors, the prosecutor’s actions did not
    amount to prejudicial misconduct. “ ‘[R]emarks made in an
    opening statement cannot be charged as misconduct unless the
    evidence referred to by the prosecutor “was ‘so patently
    inadmissible as to charge the prosecutor with knowledge that it
    could never be admitted.’ ” ’ ” (People v. Dykes (2009) 
    46 Cal.4th 731
    , 762 (Dykes).) During her opening statement, the prosecutor
    said defendant “admits to having the 9 mm. He also admits to
    taking down his rifle. That he had all of those. Went to Mexico
    with him.” As explained below, the prosecutor’s implied
    assertion—that defendant admitted to taking the nine-
    millimeter handgun to Mexico—was not directly supported by
    the evidence; the prosecutor’s misstatement, however, does not
    amount to prosecutorial misconduct.
    Although the prosecution did not produce direct evidence
    that defendant admitted taking the nine-millimeter handgun to
    Mexico, it did produce evidence of ambiguous admissions made
    by defendant with respect to the same gun. Most pointedly,
    7
    This fact was supported by defendant’s own statements to
    Detective Elvert that he had been in the same area of Mexico,
    that defendant had “torched” the van, and that he had removed
    the seats from the van beforehand. The jury easily could have
    inferred defendant had been at the same residence as Jackson’s
    nephew: Elvert testified the area where the van was burned
    was “very close . . . [w]ithin a mile up the hill from the
    [nephew’s] residence”; Acevedo testified he saw the van intact
    during his first trip to Mexico in that same neighborhood; and
    both detectives testified they recovered the van seats from the
    very residence where they met Jackson’s nephew.
    44
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Loveless testified about an interview he conducted with
    defendant. During direct examination by the prosecutor,
    Loveless recalled defendant “admitted that the 9mm belonged
    to him” and defendant said, “Just because my fingerprints are
    on that gun, doesn’t mean I killed anybody.” In response to a
    clarifying question from the prosecutor, Loveless said “[t]hat
    was the gist” of the “discussion about the 9mm that was
    recovered in Mexico.” Defendant did not object to this exchange.
    On recross-examination, however, defense counsel asked
    Loveless about a report he wrote documenting the interview.
    After consulting the report and in response to questioning from
    the defense, Loveless confirmed defendant “admitted to
    transporting the .22-caliber rifle to Tijuana but not the 9mm
    handgun.” Loveless testified defendant’s answers were at times
    “vague” and “evasive” during the interview; for instance,
    Loveless recalled defendant answering multiple questions with
    responses such as “[m]aybe so, maybe not” and “those theories
    [are] possibilities.”
    With the benefit of the complete record before us, we agree
    with defendant that the prosecutor mischaracterized
    defendant’s admission regarding the transportation of the nine-
    millimeter handgun in her opening statement. But given the
    ambiguous nature of defendant’s answers, which appeared to
    confuse even the detective conducting the interview, we cannot
    say the prosecutor’s characterization of what she expected the
    evidence to show was wholly unsupported. (See Dykes, 
    supra,
    46 Cal.4th at p. 762.)
    In any event, any mischaracterization by the prosecutor
    was not prejudicial. “ ‘[P]rosecutorial misconduct in an opening
    statement is not grounds for reversal of the judgment on appeal
    45
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    unless the misconduct was prejudicial or the conduct of the
    prosecutor so egregious as to deny the defendant a fair trial.’ ”
    (People v. Wrest (1992) 
    3 Cal.4th 1088
    , 1109.) The court twice
    instructed the jury that the attorneys’ statements did not
    constitute evidence. (See People v. Martinez (2010) 
    47 Cal.4th 911
    , 957 [“We presume the jury followed the court’s
    instruction”].) And defendant had a full opportunity “to
    challenge and rebut all evidence offered against him.” (Wrest,
    at pp. 1109–1110; accord, Dykes, 
    supra,
     46 Cal.4th at p. 762.) As
    noted above, during recross-examination, defense counsel
    elicited a clarification from Loveless that defendant “admitted
    to transporting the .22-caliber rifle to Tijuana but not the 9mm
    handgun.” Defense counsel reiterated this point in closing
    argument, underscoring the lack of direct evidence as to how the
    handgun arrived in Mexico. In light of the court’s cautionary
    instructions and defendant’s challenge of the very evidence the
    prosecutor misstated, we discern no prejudice or denial of
    defendant’s right to a fair trial.
    The prosecutor’s questioning of Jackson similarly does not
    constitute misconduct requiring reversal of the judgment.
    Defendant maintains the prosecutor deliberately elicited a
    hearsay statement made by Jackson’s nephew, who was not
    available for cross-examination, thereby violating defendant’s
    confrontation rights. (See People v. Molano (2019) 
    7 Cal.5th 620
    ,
    673–675 [prosecutor commits misconduct by deliberately
    drawing out inadmissible testimony]; People v. Tulley (2012) 
    54 Cal.4th 952
    , 1035 [same].) Even if we were to assume that the
    prosecutor deliberately elicited Jackson’s hearsay response, the
    misconduct was not prejudicial. The trial court sustained
    defense counsel’s objection to the prosecutor’s question and
    Jackson’s response; it later struck the question and response
    46
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    from the record; and it twice instructed the jury not to consider
    any evidence that was rejected. (People v. Martinez, supra, 47
    Cal.4th at p. 957.) It is true that this was a general instruction,
    not one that was directed specifically at Jackson’s testimony.
    But if “defendant believed the jury should have been more
    directly admonished on this point, it was incumbent on him to
    request such an admonishment.” (Mills, 
    supra,
     48 Cal.4th at
    p. 199.) As noted above, defendant did not do so.
    Moreover, as explained above (see ante, fn. 7), defendant
    overstates the evidentiary value of the improper testimony. The
    jury heard other evidence indicating defendant had been at
    Jackson’s nephew’s residence, including defendant’s own
    statements that he had been in that same area of Mexico and
    had burned the van, which was seen near the residence. Given
    this properly admitted evidence, and given the court’s
    cautionary instructions, any prejudice from the prosecutor’s
    question was minimal. (Cf. Friend, supra, 47 Cal.4th at p. 33
    [prosecutor’s eliciting of inadmissible hearsay was harmless in
    light of the defendant’s admissions to the same effect].) The
    prosecutor did not, in short, commit prejudicial misconduct.
    D. Restrictions on Defendant’s Cross-Examination
    of Polygraph Examiner
    After his arrest, defendant agreed to take a polygraph
    examination. Both the fact of the examination and the results
    were excluded at trial (see Evid. Code, § 351.1, subd. (a)
    [prohibiting admission of references to polygraph exams and
    their results absent stipulation]), but defendant’s otherwise
    admissible statements made during the examination were
    admitted (see id., subd. (b)). Rather than introduce defendant’s
    statements through audio or video recordings, which would have
    required redactions to eliminate any indicia of the polygraph
    47
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    examination,   the   prosecution   introduced    defendant’s
    statements through the testimony of the polygraph examiner,
    Robert Heard.
    Defendant sought to exclude Heard’s testimony about one
    particular exchange during the polygraph examination. Heard
    had asked if defendant was present when each victim was shot
    and had written down three options from which defendant could
    select: (A) “I shot 1, 2 or all 3,” (B) “I was there (present) when
    1, 2 or all 3 were shot,” or (C) “I told someone to shoot 1, 2 or all
    3.” Defendant denied options A and C. Heard then asked
    defendant about specific victims. Defendant denied being
    present when Torres and Ayala were shot, but, according to
    Heard, defendant said, “I was present” when asked about the
    Van Kleef shooting. When Heard sought confirmation that
    defendant was present only when Van Kleef was shot, defendant
    refused to answer the question.
    Defendant argued to the trial court that his answer to
    Heard’s question about the Van Kleef shooting was inaudible
    and that the prosecution should not be allowed to introduce
    Heard’s testimony about that particular answer. The trial court
    listened to the audio recording approximately 30 times and
    concluded defendant did, in fact, say, “I was present” in response
    to Heard’s question.       The court, therefore, allowed the
    prosecution to elicit Heard’s testimony on the matter. The court
    also indicated that, depending on defendant’s cross-examination
    of Heard, it might allow the prosecution to play the videotape of
    the interview so the jury could listen firsthand to defendant’s
    response and observe his mannerisms and gestures. Although
    the court did not make a final determination about the
    admissibility of the videotape, it made clear that the prosecution
    could not introduce the video under any circumstances unless
    48
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    the video was redacted to eliminate any indication that
    defendant was taking a polygraph examination.
    At trial, Heard testified for the prosecution about the three
    options he presented to defendant and defendant’s alleged
    admission to being present when Van Kleef was shot. Defense
    counsel cross-examined Heard about his exchange with
    defendant. The prosecution did not seek to introduce any part
    of the video, and the court never revisited the question of the
    video’s admissibility. Defendant now challenges the trial court’s
    earlier determination about the conditional admissibility of the
    videotape. He claims the trial court forced him to make a
    “Hobson’s Choice” between his constitutional right to cross-
    examine Heard and his constitutional right to exclude evidence
    of the polygraph examination. We disagree.
    In People v. Westerfield (2019) 
    6 Cal.5th 632
    , we rejected a
    similar claim. The prosecution in that case introduced a
    redacted videotape of the defendant’s polygraph examination
    and called the polygraph examiner to testify about the
    defendant’s responses. (Id. at p. 700.) On cross-examination,
    defense counsel asked the examiner about portions of the
    interview the court had previously ruled inadmissible and
    therefore had been redacted from the video. (Id. at p. 701.) The
    court warned defense counsel that further questioning on such
    subjects “would ‘open the door’ to the whole tape being admitted
    into evidence.” (Ibid.) After multiple warnings, the court
    offered to allow defense counsel to ask questions regarding
    redacted portions of the video if coupled with a limiting
    instruction to the jury that certain material had been redacted
    from the videotape. (Id. at p. 702.) The defendant did not accept
    the court’s offer. (Ibid.) On appeal, the defendant argued the
    court’s conditional ruling left him with “no real choice but to
    49
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    forgo further questioning.” (Id. at p. 703.) We rejected the
    defendant’s claim, noting, “[T]he trial court’s ruling did not give
    the prosecution permission to introduce the entire tape
    containing the inadmissible polygraph evidence . . . .” (Ibid.)
    Similarly here, defendant argues he was forced to sacrifice
    his right to cross-examine Heard to prevent the introduction of
    inadmissible polygraph evidence. But the trial court placed no
    limitations on defendant’s cross-examination; the court simply
    indicated that certain questioning about the nature of
    defendant’s statements might lead it to consider admitting a
    redacted portion of the videotape so the jury could evaluate the
    issue for itself. In light of the court’s factual finding that
    defendant’s answer to Heard’s question was in fact audible, the
    court’s tentative determination was reasonable.
    Defendant also fails to persuade that introduction of the
    video would have violated his right to a fair trial. He insists the
    prosecution would not have been able to redact all indicia of the
    polygraph examination. But the court expressly conditioned
    any admission of the videotape on such removal, and defendant
    merely speculates that the court would have been unwilling or
    unable to uphold this condition. Indeed, defendant’s own
    attorney had previously told the court that she “viewed the
    videotape and . . . can’t tell really that that’s a polygraph room.”
    Absent any support for the contention that he was forced to
    sacrifice his right to confrontation to preserve his right to a fair
    trial, defendant’s constitutional claims fail.
    50
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    E. Admission of Testimony That Defendant Was
    “Taken to the Polygraph Unit” and Trial Court’s
    Curative Instruction
    During cross-examination, defense counsel asked Loveless
    about the chronology of events at the end of his interview with
    defendant. Loveless testified that after he concluded the
    interview, defendant “was escorted over to the polygraph unit.”
    The trial court immediately called for a recess to address
    Loveless’s reference to “the polygraph unit.” (See Evid. Code,
    § 351.1, subd. (a) [prohibiting the admission into evidence of
    “any reference to an offer to take, failure to take, or taking of a
    polygraph examination”].) At sidebar with counsel, the court
    expressed the opinion that Loveless did not intentionally exceed
    the bounds of admissible testimony, but the court did consider
    the reference “prejudicial” and noted, “[I]t doesn’t take much to
    deduce that Mr. Heard is a polygraph examiner.” Defendant
    moved to strike Heard’s testimony and for a mistrial; the court
    denied both motions. The court decided to instruct the jury, at
    defense counsel’s request, that defendant “was never offered nor
    ever submitted himself to a polygraph examination” but was
    “physically transported to that area [i.e., the polygraph unit]
    only because that’s where Mr. Heard’s office is.”
    On appeal, defendant claims Loveless’s reference to “the
    polygraph unit” was prejudicial and the court’s instruction
    failed to cure the resultant harm. He maintains the jury must
    have deduced Heard was a polygraph examiner because Heard,
    who testified immediately before Loveless, stated he was retired
    from the police force and agreed he now “assist[s] homicide
    detectives with interviewing particular witnesses.” Defendant
    also asserts Heard’s testimony reflected the kind of “yes or no”
    questions the jury would have associated with a polygraph
    51
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    examination.     Taking this evidence together, defendant
    contends the jury was likely to disbelieve the court’s admonition
    and to discredit the defense as a result, thereby violating his
    rights to due process and to reliable guilt and penalty
    determinations. (U.S. Const., 8th & 14th Amends.)
    We review the trial court’s evidentiary ruling for abuse of
    discretion. (Thompson, supra, 1 Cal.5th at p. 1120 [applying
    abuse of discretion standard to “questions involving the
    admission of polygraph-related evidence”]; People v. Jenkins
    (2000) 
    22 Cal.4th 900
    , 986 [“ ‘[w]hether 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’ ”].) Under this deferential standard, we
    discern no error.
    As an initial matter, we note that the fleeting reference to
    “the polygraph unit” did not clearly constitute a “reference to an
    offer to take, failure to take, or taking of a polygraph
    examination” (Evid. Code, § 351.1, subd. (a)). While the jury
    could have inferred defendant took a polygraph examination
    when he was escorted to “the polygraph unit,” that is not the
    only plausible inference; the trial court offered the jury another
    one—that Heard’s office was located nearby. And the court’s
    unequivocal statement that defendant “was never offered nor
    ever submitted himself to a polygraph examination” forcefully
    pointed the jury toward the latter inference. “In the context of
    erroneously offered polygraph evidence, we have held that a
    trial court’s timely admonition, which the jury is presumed to
    have followed, cures prejudice resulting from the admission of
    such evidence.” (People v. Cox (2003) 
    30 Cal.4th 916
    , 953 (Cox).)
    Assuming that the reference to “the polygraph unit” was
    52
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    inadmissible, we have no reason to conclude the admonition was
    insufficient here.8
    Nor are we persuaded by defendant’s argument that the
    admonition was ineffective given the other evidence from which
    the jury may have deduced that Heard was a polygraph
    examiner. Heard testified he had worked in a number of law
    enforcement roles; he was then working as an investigator for
    the San Bernardino County Sheriff’s Department and
    previously worked as an employee of the Los Angeles County
    Sheriff’s Department and the Pomona Police Department. The
    fact that Heard said he now helped “homicide detectives with
    interviewing particular witnesses” did not meaningfully
    differentiate him from other law enforcement personnel, nor did
    it necessarily signal he was a polygraph examiner.
    In sum, defendant fails to show that the trial court’s
    immediate and forceful curative instruction—an instruction
    defendant himself suggested—was insufficient. (See Thompson,
    supra, 1 Cal.5th at p. 1122.) Defendant fails to establish a
    violation of his rights under either state or federal law.
    8
    Defendant compares his case to People v. Basuta (2001) 
    94 Cal.App.4th 370
    , 389–391, where the prosecutor violated a
    preexisting court order not to mention a polygraph examination,
    which, when combined with another serious error, prejudiced
    the outcome of the trial. Defendant’s argument is undeveloped
    and, in any event, fails for the same reasons that we rejected
    similar arguments in Cox and Thompson. (See Cox, 
    supra,
     30
    Cal.4th at pp. 953–954 [noting that Basuta involved multiple
    evidentiary errors, including one more significant than the
    reference to polygraph-related evidence]; Thompson, supra, 1
    Cal.5th at p. 1122 [noting that Basuta involved cumulative
    errors that “ ‘substantially affected the crucial issue in the
    case—[the main witness’s] credibility’ ”].)
    53
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    F. Admission of Testimony That Victim Was Afraid
    of Defendant
    Defendant argues the trial court erred by admitting
    certain testimony by Erick Tinoco, a friend of Torres, Van Kleef,
    and Ayala. According to Tinoco, Torres said he was concerned
    he might have been “in trouble” because he did not show up to
    his jumping-in ceremony, where he was supposed to join the
    gang. Torres also “said he didn’t know if he should go back to
    Andrew’s aunt’s apartment because he was afraid that
    [defendant] was going to get mad at him, so he didn’t know what
    to do.” The court allowed this testimony to come in for the
    limited purpose of showing Torres’s state of mind.
    Evidence Code section 1250, subdivision (a)(1) provides
    that hearsay statements reflecting an existing state of mind of
    the speaker are admissible for the limited purpose of proving the
    declarant’s state of mind. But this state of mind exception
    applies only if the declarant’s state of mind is relevant to a
    disputed issue at trial. (People v. Noguera (1992) 
    4 Cal.4th 599
    ,
    621 (Noguera).) A trial court errs by admitting a murder
    victim’s out-of-court statement of fear of the defendant when the
    victim’s state of mind is not at issue. (Ibid.) “[A] victim’s prior
    statements of fear are not admissible to prove the defendant’s
    conduct or motive (state of mind). If the rule were otherwise,
    such statements of prior fear or friction could be routinely
    admitted to show that the defendant had a motive to injure or
    kill.” (People v. Ruiz (1988) 
    44 Cal.3d 589
    , 609.) Here, Torres’s
    state of mind was not at issue. It was error to admit his
    statements on this basis. (See Noguera, at pp. 621–622.)
    We conclude, however, that the error in admitting the
    statements was harmless. It is not reasonably probable the jury
    would have reached a different result had it not heard evidence
    54
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    that Torres was afraid defendant “was going to get mad at him.”
    (See People v. Watson (1956) 
    46 Cal.2d 818
    , 836.) Torres’s
    statements were relatively inconsequential compared to the
    other evidence adduced at trial. Multiple witnesses placed
    defendant at the scene of Torres’s murder. Mosqueda testified
    that he saw defendant shoot Torres many times. And Alvarez
    testified that defendant was holding what appeared to be a
    pistol when he returned to her van immediately after the
    shooting. In addition, there was other, nonhearsay evidence to
    support the prosecution’s theory of motive, including testimony
    that Torres did not attend his jumping-in ceremony and expert
    testimony that backing out of an agreement to join the gang
    would be considered disrespectful. The jury could have inferred
    defendant’s motive from that evidence without Torres’s hearsay
    statements expressing fear of defendant. We therefore conclude
    that any hearsay error in admitting Tinoco’s testimony was
    harmless. (See Noguera, 
    supra,
     4 Cal.4th at pp. 622–623.)
    G. Sufficiency of the Evidence as to the First
    Degree Murders of Van Kleef and Ayala
    Defendant argues there was insufficient evidence that he
    murdered Van Kleef and Ayala. We conclude there was
    sufficient evidence as to both murders.
    The test for evaluating a sufficiency of evidence claim is
    deferential: “whether, on the entire record, a rational trier of
    fact could find the defendant guilty beyond a reasonable doubt.”
    (People v. Jones (1990) 
    51 Cal.3d 294
    , 314.) We must “view the
    evidence in the light most favorable to the People” and “presume
    in support of the judgment the existence of every fact the trier
    could reasonably deduce from the evidence.” (Ibid.) We must
    also “accept logical inferences that the jury might have drawn
    55
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    from the circumstantial evidence.” (People v. Maury (2003) 
    30 Cal.4th 342
    , 396.)
    We begin with the evidence supporting defendant’s
    conviction for the first degree murder of Van Kleef. Multiple
    witnesses testified that Van Kleef witnessed defendant murder
    Torres. Van Kleef was then himself murdered later that night.
    Defendant had no alibi and the jury could have logically
    concluded from the evidence that he was with Van Kleef at the
    time he was murdered. Alvarez testified she returned to her
    apartment after Torres was murdered to find defendant and
    Van Kleef there. Van Kleef then left the apartment, and
    defendant followed within a few minutes, holding the keys to
    Alvarez’s van. Alvarez testified she was at that point worried
    about Van Kleef’s safety. Defendant was gone for about an hour.
    When he returned to Alvarez’s apartment, he told her “he had
    gotten into an argument or something and they broke the
    window, somebody broke the window” of her van on the front
    passenger’s side. Alvarez said she went to her van and saw that
    half the passenger’s side windshield had been shattered.
    Mosqueda testified he also saw the damage to the windshield.
    He described it as a “bullet hole.”9 From these facts, the jury
    could have inferred that defendant was with Van Kleef when he
    was killed; that defendant had shot someone near the van; and
    that the person defendant shot was Van Kleef. These inferences
    9
    Defendant argues Mosqueda’s testimony should be
    discredited because he changed his story over time. But “it is
    the exclusive province of the trial judge or jury to determine the
    credibility of a witness . . . .” (People v. Jones, supra, 51 Cal.3d
    at p. 314.) The jury was made aware of the discrepancies in
    Mosqueda’s various accounts, and nonetheless presumably
    found his trial testimony to be credible.
    56
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    would have been particularly reasonable given defendant’s
    apparent motive to eliminate Van Kleef because he witnessed
    Torres’s murder and was not loyal to the gang.
    Significant physical evidence also linked the van, which
    was in defendant’s possession at the relevant time, and
    defendant himself to Van Kleef’s murder. Loveless, who
    investigated the Van Kleef crime scene, testified that Van
    Kleef’s body was covered in a thin blue blanket or sheet, and
    Alvarez testified that she kept a blue sheet in her van. Loveless
    also testified that he found a white Stafford Polo-type T-shirt
    underneath Van Kleef’s body. The prosecution introduced into
    evidence an open package of T-shirts of this type and brand that
    belonged to defendant. The forensic pathologist who examined
    Van Kleef testified he could have been shot by a nine-millimeter
    handgun, and defendant was known to carry a nine-millimeter
    handgun. Defendant himself also admitted he was “present” at
    the Van Kleef murder. Based on all this evidence, viewed in the
    light most favorable to the prosecution, a rational trier of fact
    could have found defendant guilty of murdering Van Kleef
    beyond a reasonable doubt.
    We now turn to the evidence concerning Ayala’s murder.
    The trial evidence showed that defendant again borrowed
    Alvarez’s van during the time period when Ayala was murdered.
    On the night of the murder, Mosqueda drove Ayala home in
    Alvarez’s van around 11:00 p.m. Mosqueda gave the keys to
    Alvarez, then returned to his home. Defendant then borrowed
    the van and left for approximately one hour. Ayala’s sister
    testified about Ayala’s whereabouts on the night he was killed.
    She was home that night around 10:30 p.m. or 11:00 p.m., and
    Ayala was there with her. Ayala told her he was not going out
    that night and was in the clothes he usually wore to bed. Ayala
    57
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    was killed around midnight and left on the side of the road, in
    clothes inadequate for the weather. Detective Joe Palomino
    testified he clocked the mileage between the place where Torres
    was killed and the place where Ayala was killed the next day,
    and it was only two-tenths of a mile. Based on this evidence, the
    jury could logically infer that Flores killed Ayala during the time
    period when he borrowed Alvarez’s van.
    Furthermore, a rational jury could have logically
    concluded that the ballistics evidence—together with the other
    evidence presented—showed defendant murdered Ayala. Two
    bullets were recovered from the Ayala crime scene. Heward
    testified that she test-fired the nine-millimeter handgun
    recovered from Mexico and compared the test-fires to the two
    bullets found at the Ayala crime scene. She was able to identify
    one of the bullets as coming from the handgun but was not
    positive about the other bullet. This was the same nine-
    millimeter handgun that she identified was used in the Torres
    murder. The handgun was linked to defendant in that he was
    known to carry a nine-millimeter handgun; Mosqueda identified
    the nine-millimeter handgun from Mexico as the one defendant
    carried; and multiple witnesses testified that defendant
    appeared to have shot Torres. The jury could have logically
    inferred that defendant shot Torres and Ayala with the same
    handgun.
    We agree with defendant that there was limited evidence
    of defendant’s motive for killing Ayala. The jury heard
    testimony that Ayala was friends with Van Kleef and Mosqueda,
    both of whom had witnessed the Torres killing; indeed,
    Mosqueda testified he saw Ayala every day. The jury also heard
    evidence that defendant was a member of the El Monte Trece
    gang and that, according to Detective Penney, in the gang
    58
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    culture, “disrespect” would be a reason to murder someone.
    Ayala was not in the gang; Penney testified that declining to join
    the gang, as Ayala did, would have been considered a form of
    disrespect. Penney also testified that, because Ayala was shot
    in the back of the head while on his knees, he appears to have
    been assassinated, just like Van Kleef. Based on this evidence,
    the jury may have inferred that defendant believed Van Kleef or
    Mosqueda had told Ayala about the Torres murder and that
    defendant killed Ayala for much the same reason he killed Van
    Kleef—that is, to silence all potential witnesses to the Torres
    murder not affiliated with the gang. Alternatively, the jury
    could have believed defendant felt it was disrespectful for Ayala
    to decline to join the gang and murdered him for that reason.
    But in any event, motive is not an element of murder, so the
    prosecution could prove its case without definitive evidence of a
    motive. The relatively limited evidence of motive does not
    undermine the sufficiency of the evidence that defendant
    committed the crime.
    Defendant compares his case to People v. Blakeslee (1969)
    
    2 Cal.App.3d 831
    . There, the Court of Appeal found insufficient
    evidence where the defendant could be placed at the murder
    scene but where there was little else to connect her to the
    murder. (Id. at pp. 837–840 [highlighting, in particular, the
    absence of a murder weapon or any evidence “linking the
    defendant in some manner to a weapon” (id. at p. 840)].) The
    comparison is inapt. Here, unlike in Blakeslee, the prosecution
    presented evidence linking defendant to the type of weapon used
    in the murders. There was also other physical evidence linking
    defendant to the Van Kleef murder, including the T-shirt, the
    blue sheet, and the bullet hole in the van window. Finally,
    defendant does not dispute the sufficiency of the evidence that
    59
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    he murdered Torres. The close proximity in time and space of
    the other two murders, and the fact that all three boys were in
    the same friend group, also supported an inference that the
    murders were related to one another. Based on these facts and
    all the evidence in the record, we conclude there was sufficient
    evidence showing defendant murdered Van Kleef and Ayala.
    IV. PENALTY PHASE ISSUES
    A. Purported Miranda Violation Regarding
    Admission of Guilt for Jaimes Murder
    1. Background
    During the penalty phase of trial, the prosecution
    introduced a taped interview during which defendant confessed
    to killing Jaimes.10 Defendant admitted he killed Jaimes after
    Jaimes allegedly disrespected defendant and his mother; Jaimes
    had solicited defendant’s mother as a prostitute and then
    refused to promptly leave the motel where defendant and his
    mother were living. After a verbal altercation between the two
    men, defendant killed Jaimes by shooting him multiple times in
    the stomach, chest, and head. Defendant recalled wrapping
    Jaimes’s body in plastic, placing it in the trunk of a car he stole,
    and then taking the car for a joyride before parking it near the
    motel. Jaimes’s body was later discovered by Milam, the owner
    of the car, who recovered it from an impound lot.
    The Jaimes killing occurred in Los Angeles. Los Angeles
    authorities did not locate defendant until Customs and Border
    Patrol caught him attempting to cross the United States-Mexico
    10
    As noted above, the court did not allow the prosecution to
    introduce evidence of this uncharged homicide during the guilt
    phase of trial, deeming it unduly prejudicial.
    60
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    border on September 6, 2001. The San Bernardino authorities,
    who were actively investigating the three homicides in the
    present case, transported defendant from the border to their
    jurisdiction and informed the Los Angeles Police Department
    defendant was in their custody. Defendant was booked that
    evening. At approximately 10:55 p.m., Detective Chris Elvert of
    the San Bernardino County Sheriff’s Department interviewed
    defendant about the Torres, Van Kleef, and Ayala homicides.11
    Elvert advised defendant of his Miranda rights at the start of
    the interview, and defendant indicated that he understood his
    rights and was willing to speak with the detective. Elvert
    continued to question defendant for approximately one hour.
    Defendant answered many of Elvert’s questions but refused to
    answer others; throughout the interview, defendant denied
    responsibility for the crimes.
    The following morning, Elvert walked defendant across
    the street to a nearby facility where Lieutenant Kusch of the Los
    Angeles Police Department was waiting. Elvert told Kusch
    defendant had been advised of his Miranda rights the previous
    night and had participated in a lengthy interview. Kusch
    introduced himself to defendant and explained that he planned
    to ask defendant about a different crime—the Jaimes killing.
    He told defendant Los Angeles County did not have an arrest
    warrant out for him at that time. Kusch also noted that
    defendant may have already known quite a bit about their
    11
    Elvert had driven defendant from the border to San
    Bernardino and had spoken with defendant during the drive
    without giving any Miranda advisements. The prosecution did
    not introduce any evidence related to the drive, and defendant
    does not rely on the lack of Miranda advisements during the
    drive to support his arguments here.
    61
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    investigation through his mother or other family. Before Kusch
    began any substantive questioning, he readvised defendant of
    his Miranda rights, and defendant indicated that he understood
    all of them. Kusch then said: “Basically what I’d like to do is
    talk about the the [sic] case that we investigated that we got
    called out on back on November 17th, 2000. Uh I’ll tell you how
    we got called out on it in a minute but uh do you want to take a
    few minutes to talk a little bit about that?” The transcript
    records defendant’s response as “No,” although in the videotape
    of the interview, the response sounds more like, “Nah.” Kusch
    responded as follows:
    “Well essentially what I want to do is to take a minute and
    kind of explain to you what uh what we got called out on and
    what the investigation entailed and what not. Of course you
    know whether you choose to answer the questions is completely
    up to you um but obviously you know I just wanted to at least
    give you the thumbnail sketch of what we investigated, what we
    what we [sic] did and talk a little bit about that. Again, you
    know you don’t have to answer any questions. We’re just sitting
    here, if you don’t want to answer certain questions you don’t
    have to answer them, if you want to answer other questions you
    can answer those. So, you know . . . for example some of the
    stuff I want to talk to you about is what’s your name and birth
    date and stuff like that which are pretty simple questions. So.
    Do you want to take a few minutes and talk to me about that
    stuff?”
    Defendant answered: “Oh yeah, well whatever.” The
    interview continued from there, and eventually defendant
    described in detail how he killed Jaimes. Defendant told Kusch:
    “I’m gonna tell you what happened. [¶] . . . [¶] Not because I
    have to not because, I mean because I want to, ay. Cuz I feel
    62
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    what happened wasn’t right.” Defendant said he went to the
    motel room where his mother lived to find Jaimes there,
    seemingly taking drugs; defendant asked him to leave, but he
    would not leave and was “disrespecting” and “coming at my
    mom.” Defendant told Kusch: “I murdered him ey. I did it. All
    right? And I enjoyed doing it ay. I’m gonna tell you why,
    because it was defending my mother.” Defendant later said, “I
    pulled out my gun and I blew his fucking head off ay.”
    Before trial, defendant filed a motion to suppress his
    statements to Kusch, claiming he invoked his right to remain
    silent by saying, “No” when asked whether he wanted “to talk a
    little bit about that.” The trial court held an evidentiary hearing
    and reviewed audio recordings and transcripts of the
    aforementioned interviews. The court ruled that defendant’s
    “[n]o,” in context, was not an unambiguous invocation of his
    right to remain silent. In the court’s view, defendant’s answer
    was ambiguous because Kusch’s question was ambiguous: when
    Kusch asked defendant whether he wanted to talk “about that”
    (italics added), it was unclear whether Kusch was referring to
    the Jaimes case in general or to the specific matter of how the
    Los Angeles Police Department “got called out on” it. In light of
    this ambiguity, the court reasoned, Kusch properly clarified
    defendant’s right to refuse to answer questions, and defendant
    thereafter waived his Miranda rights by willingly engaging in
    the interview.
    Defendant now challenges the trial court’s admissibility
    ruling. He claims the statements he made to Kusch were
    obtained in violation of Miranda and that their introduction
    during the penalty phase of trial violated his rights to due
    process, to a reliable penalty verdict, and to be free from cruel
    and unusual punishment. (U.S. Const., 5th, 8th & 14th
    63
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Amends.; Cal. Const., art. I, § 15.) We conclude the trial court
    did not err in ruling defendant’s statements admissible.
    2. Analysis
    “Under California law, issues relating to the suppression
    of statements made during a custodial interrogation must be
    reviewed under federal constitutional standards.” (People v.
    Nelson (2012) 
    53 Cal.4th 367
    , 374.) To protect suspects’ Fifth
    and Sixth Amendment rights, in Miranda v. Arizona (1966) 
    384 U.S. 436
    , the high court held that before questioning,
    individuals in custody must be advised of their right to remain
    silent, that anything they say may be used as evidence against
    them, and that they have the right to the presence of an
    attorney, whether retained or appointed. (Id. at p. 444.) But a
    suspect can waive these rights and agree to speak with law
    enforcement. (Maryland v. Shatzer (2010) 
    559 U.S. 98
    , 104.)
    The burden is on the prosecution to prove by a preponderance of
    the evidence that the waiver was knowing, intelligent, and
    voluntary, based on a totality of the circumstances. (Ibid.)
    The requirements for a valid waiver of rights differ from
    the requirements for a valid invocation of rights. (Smith v.
    Illinois (1984) 
    469 U.S. 91
    , 98 (Smith) [“Invocation and waiver
    are entirely distinct inquiries, and the two must not be blurred
    by merging them together”].) “A valid waiver need not be of
    predetermined form, but instead must reflect that the suspect
    in fact knowingly and voluntarily waived the rights delineated
    in the Miranda decision.” (People v. Cruz (2008) 
    44 Cal.4th 636
    ,
    667 (Cruz).) “A suspect’s expressed willingness to answer
    questions after acknowledging an understanding of his or her
    Miranda rights has itself been held sufficient to constitute an
    implied waiver of such rights.” (Ibid.) The critical question with
    respect to waiver is whether it was knowing and voluntary,
    64
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    which is “directed at an evaluation of the defendant’s state of
    mind.”     (People v. Williams (2010) 
    49 Cal.4th 405
    , 428
    (Williams).)
    In contrast, a suspect’s invocation of Miranda rights must
    be “unambiguous[]” from the perspective of a reasonable officer.
    (Berghuis v. Thompkins (2010) 
    560 U.S. 370
    , 381 (Berghuis).) If
    “a reasonable officer in light of the circumstances would have
    understood only that the suspect might be invoking the right,”
    then the officer need not cease all questioning immediately.
    (Davis v. United States (1994) 
    512 U.S. 452
    , 459 (Davis).)
    Whether or not a reasonable officer would perceive a suspect’s
    statement as ambiguous may depend on context. (People v.
    Sauceda-Contreras (2012) 
    55 Cal.4th 203
    , 218 (Sauceda-
    Contreras); Williams, 
    supra,
     49 Cal.4th at pp. 428–429; People
    v. Sanchez (2019) 
    7 Cal.5th 14
    , 49–50.) “ ‘[W]hen a suspect
    under interrogation makes an ambiguous statement that could
    be construed as an invocation of his or her Miranda rights, “the
    interrogators may clarify the suspect’s comprehension of, and
    desire to invoke or waive, the Miranda rights.” ’ ” (Williams, at
    p. 428.)
    “In reviewing constitutional claims of this nature, it is well
    established that we accept the trial court’s resolution of disputed
    facts and inferences, and its evaluations of credibility, if
    supported by substantial evidence.             We independently
    determine from the undisputed facts and the facts properly
    found by the trial court whether the challenged statement was
    illegally obtained.” (People v. Cunningham (2001) 
    25 Cal.4th 926
    , 992.)
    a. Invocation of the Right To Remain Silent
    Defendant advances a series of layered arguments
    challenging the admission of his confession to the Jaimes
    65
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    murder. First, he contends he unambiguously invoked his right
    to remain silent when he answered, “No” in response to Kusch’s
    initial query whether defendant “wanted to talk a little bit about
    that.” Defendant argues that, at that point, Kusch should have
    immediately terminated the encounter. Instead, as noted above,
    Kusch asked a follow-up question to clarify the nature of his
    inquiry, repeatedly reminding defendant of his right not to
    answer questions. In response to this follow-up, defendant
    expressed willingness to answer Kusch’s questions. Defendant
    argues there never should have been a follow-up question, so his
    expressed agreement to continue the interview should be given
    no effect. After closely reviewing the record, including a
    videotape of the interview, we are not persuaded.12
    It is true, as defendant emphasizes, that a “no” response
    to a simple question whether the suspect wishes to speak with
    law enforcement generally constitutes an unambiguous
    invocation. (See, e.g., People v. Case (2018) 
    5 Cal.5th 1
    , 21 [“In
    this case, defendant was asked whether he would talk to the
    detectives and answered no. This seems clear enough”]; Garcia
    v. Long (9th Cir. 2015) 
    808 F.3d 771
    , 773 [similar].) But here,
    considered in context, neither the question asked, nor the
    answer given was this simple—and, as is true with most
    questions of interpretation, context does matter. In certain
    12
    To avoid any confusion, we emphasize that the question
    before us is not whether Kusch was entitled to refuse to “take
    ‘no’ for an answer” and simply forge ahead with his substantive
    questioning. (Conc. & dis. opn., post, at p. 9.) That is not the
    situation we confront here, and we do not address it. The only
    question is whether it was permissible for Kusch to ask his
    follow-up clarifying question, to which defendant responded
    with willingness to continue the interview.
    66
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    situations, statements that might seem clear in isolation
    “actually may be equivocal under an objective standard, in the
    sense that in context it would not be clear to the reasonable
    listener what the defendant intends. In those instances, the
    protective purpose of the Miranda rule is not impaired if the
    authorities are permitted to pose a limited number of followup
    questions to render more apparent the true intent of the
    defendant.” (Williams, supra, 49 Cal.4th at p. 429; see also, e.g.,
    People v. McGreen (1980) 
    107 Cal.App.3d 504
    , 522 [head shake,
    followed by verbalized “no,” unclear in context; permissible for
    officer to clarify suspect’s meaning]; Medina v. Singletary (11th
    Cir. 1995) 
    59 F.3d 1095
    , 1105 [defendant’s “no” unclear in
    context; under circumstances, “[t]o prohibit a clarifying question
    . . . would ‘transform the Miranda safeguards into wholly
    irrational obstacles to legitimate police investigative
    activity’ ”].)
    Several circumstances, taken together, lead us to conclude
    that this is a case in which the officer acted reasonably in
    clarifying defendant’s intent. First, the clarity of a suspect’s
    answer may depend in part on the clarity of the officer’s
    question. (Sauceda-Contreras, supra, 55 Cal.4th at p. 219; cf.
    Smith, 
    supra,
     469 U.S. at p. 98 [“Where nothing about the
    request . . . or the circumstances leading up to the request would
    render it ambiguous, all questioning must cease” (italics
    added)].) Here, as the trial court found, the nature of Kusch’s
    initial question was unclear. Kusch said he would “tell
    [defendant] how [the police] got called out on [the case] in a
    minute” immediately before asking whether defendant
    “want[ed] to take a few minutes to talk a little bit about that.”
    (Italics added.) It was not entirely clear whether Kusch was
    asking defendant whether he was willing to answer questions
    67
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    about the Jaimes case or whether defendant wanted to talk
    about how “we got called out on it,” or both. Because Kusch’s
    question was imprecise, defendant’s answer could have meant
    either, “No, I do not want to talk to you at all,” or “No, I do not
    want to hear about how the police got called out.”13
    The factual backdrop to the conversation makes the
    second interpretation particularly plausible.     Although a
    suspect normally might not care much about how a law
    enforcement agency began its investigation, in this case there
    was cause to think defendant might react differently. That is
    because defendant’s own mother played a central role in that
    story by providing information that helped lead the police to
    13
    The dissent disagrees with this assessment, concluding
    that the “plain language and flow of Kusch’s prefatory
    statements . . . leave no doubt” about the intended referent of
    the “that.” (Conc. & dis. opn., post, at p. 6.) We do not disagree
    that the dissent has the better reading of Kusch’s intended
    meaning—indeed, Kusch would make this intent clear in his
    follow-up question. But was this the only way defendant could
    have understood Kusch’s imprecise initial question? We agree
    with the trial court that it was not.
    The dissent also argues that the form of Kusch’s question
    “invit[ed] Flores to speak,” not the other way around, because
    Kusch asked if defendant “wanted to ‘talk a little bit about
    that.’ ” (Conc. & dis. opn., post, at p. 6, italics added.) But in
    ordinary speech, we understand that asking another person if
    he or she is willing to talk about something often means the
    speaker has something to say (consider, for example, the age-old
    “We need to talk”). Here, Kusch’s question contained a promise
    to talk to defendant about a subject of which defendant had no
    personal knowledge—the path of the police investigation of the
    Jaimes murder. It is not unreasonable to think defendant was
    focused on that promise when he answered Kusch’s question.
    68
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    defendant, as Kusch himself would explain to the jury during
    the penalty phase of trial. Kusch had reason to believe
    defendant was aware of that fact and indeed alluded to it shortly
    before asking if defendant wanted to talk: “Um pretty clearly
    you know we’ve done a pretty thorough investigation,” Kusch
    said, “I don’t know if you had a chance to talk to any family or
    your mom or anything between you know November and now
    but uh I have a sense that you probably know a little bit about
    uh our investigation et cetera.” As Kusch was aware, how the
    police “got called out on” the case may have been a subject of
    particular personal importance to defendant. Knowing that, a
    reasonable officer might well wonder whether defendant’s
    response to Kusch’s poorly framed question was aimed at
    Kusch’s promise to talk more about the path of the police
    investigation, as opposed to signaling unwillingness to answer
    Kusch’s questions about the Jaimes murder.
    The videotape of the interview, which we have reviewed,
    also provides context to our inquiry and reinforces our
    conclusion about the lack of clarity in the initial exchange
    between Kusch and defendant. The interview begins with
    Kusch and defendant in the interrogation room, with defendant
    sitting calmly and Kusch audibly fumbling with his papers.
    Kusch then begins a lengthy, somewhat unfocused discussion of
    the various things Kusch plans to disclose to defendant and
    what he is generally interested in learning from defendant.
    Kusch then begins to read defendant his Miranda rights.
    Defendant smiles and nods in response. When Kusch ultimately
    asks whether defendant wants to “take a few minutes to talk a
    little bit about that” defendant says a casual sounding “no,” or,
    perhaps, “nah”; as he says this, defendant is still smiling and
    gives a short laugh. The dissonance between defendant’s
    69
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    seemingly bemused demeanor and his spoken response is
    confusing; the combined effect is murky and unclear. A
    reasonable officer, having just asked a badly framed question,
    might legitimately wonder whether this response was rooted in
    some misunderstanding of the officer’s intended meaning.
    (Compare, e.g., Com. v. Mazariego (2016) 
    474 Mass. 42
    , 53 [
    47 N.E.3d 420
    , 430] [relying on the defendant’s laughter, as shown
    on the videotape of his interview, to help explain that when he
    said, “ ‘No, no, no,’ ” he was responding to a different proposition,
    not to the question whether he wanted to continue talking].)
    Finally, we note that at the time of this exchange, Kusch
    knew that defendant had, the previous day, already waived his
    Miranda rights and voluntarily engaged in an extended
    conversation with Detective Elvert about the homicides charged
    in this case. At least until this point, nothing in defendant’s
    interactions with Kusch suggested that defendant would be less
    willing to answer questions about the Jaimes homicide.
    Defendant was of course entitled to refuse to answer questions
    about the Jaimes homicide, as Kusch properly informed
    defendant, and defendant’s willingness to talk about the
    homicides charged in this case creates no presumption that he
    would also be willing to talk about a different homicide. But
    this, too, may add context to Kusch’s decision to ask a question
    clarifying his initial, poorly framed inquiry into defendant’s
    willingness to answer questions about the Jaimes murder.
    Based on all of these case-specific contextual
    considerations, we agree with the trial court that Kusch was not
    bound to cut off the encounter immediately; it was not
    unreasonable for Kusch to ask a neutral follow-up question to
    clarify defendant’s intent.
    70
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    This conclusion is consistent with our precedent in this
    well-trodden area of the law. (See Sauceda-Contreras, supra, 
    55 Cal.4th 203
    ; Williams, 
    supra,
     
    49 Cal.4th 405
    .)14 In Williams,
    the defendant, then a suspect in custody, expressed a
    willingness to waive his right to remain silent. (Id. at p. 426.)
    The interrogating officers then inquired about defendant’s
    willingness to waive the right to counsel, and the following
    colloquy took place:
    “[Defendant]: ‘You talking about now?’
    “[First Officer]: ‘Do you want an attorney here while
    you talk to us?’
    “[Defendant]: ‘Yeah.’
    “[First Officer]: ‘Yes you do.’
    “[Defendant]: ‘Uh huh.’
    “[First Officer]: ‘Are you sure?’
    “[Defendant]: ‘Yes.’
    “[Second Officer]: ‘You don’t want to talk to us right
    now.’
    “[Defendant]: ‘Yeah, I’ll talk to you right now.’
    “[First Officer]: ‘Without an attorney.’
    “[Defendant]: ‘Yeah.’ ”
    14
    Williams and Sauceda-Contreras involved purported
    invocations of the right to counsel rather than the right to
    remain silent, but we apply the same analysis to both inquiries.
    (See Berghuis, 
    supra,
     560 U.S. at p. 381 [“there is no principled
    reason to adopt different standards for determining when an
    accused has invoked the Miranda right to remain silent and the
    Miranda right to counsel”].)
    71
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    (Ibid.) The officers went on to explain that if the defendant
    wanted a lawyer, a public defender would be present in a couple
    days, but the defendant insisted he did not want to wait and
    preferred to talk with the officers immediately. (Ibid.)
    On appeal, the defendant argued the officers were
    required to cease all questioning as soon as he said, “ ‘Yeah’ ” in
    response to their question whether he wanted an attorney.
    (Williams, 
    supra,
     49 Cal.4th at p. 426.) In response, we
    explained that while the defendant’s “ ‘Yeah’ ” may have seemed
    clear in isolation, the answer was ambiguous in context. (Id. at
    pp. 429–431.) The defendant had previously waived his right to
    remain silent and appeared confused about the timing of when
    an attorney would be available; under those circumstances, the
    officers were permitted to ask follow-up questions to clarify
    what he truly intended. (Id. at p. 429.)
    In Sauceda-Contreras, supra, 
    55 Cal.4th 203
    , a detective
    similarly advised the defendant of his Miranda rights with the
    help of a translating officer, and the defendant said he
    understood. (Id. at p. 206.) He was then asked: “ ‘Having in
    mind these rights . . . , the detective would like to know if he can
    speak with you right now.’ ” (Ibid.) The defendant responded:
    “ ‘If you can bring me a lawyer, that way I[,] I with who . . . that
    way I can tell you everything that I know and everything that I
    need to tell you and someone to represent me.’ ” (Ibid.) The
    translator said, “ ‘[P]erhaps you didn’t understand your rights,’ ”
    and rephrased the question: “ ‘[W]hat the detective wants to
    know right now is if you’re willing to speak to him right now
    without a lawyer present?’ ” (Ibid.) The defendant responded
    affirmatively. The detective, through the translator, reiterated
    that “[t]he decision is yours” and repeated the question. (Ibid.)
    After the defendant repeatedly expressed a desire to continue
    72
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    without an attorney, the detective conducted an interrogation
    and ultimately obtained a confession. (Ibid.)
    We rejected the defendant’s argument that the officers
    were required to cease all questioning after his initial response
    referred to “ ‘bring[ing him] a lawyer.’ ” (Sauceda-Contreras,
    supra, 55 Cal.4th at p. 206.) We explained that his answer was
    “conditional, ambiguous, and equivocal,” in part because of the
    question asked of him. (Id. at p. 219.) Because the question was
    qualified with “ ‘right now,’ ” the defendant’s answer was
    “impliedly asking whether [an attorney] could be provided right
    now.” (Ibid.) We concluded that “[f]rom an objective standpoint,
    a reasonable officer under the circumstances would not have
    understood defendant’s response to be a clear and unequivocal
    request for counsel.” (Ibid.) It was therefore appropriate for the
    detective to “seek[] confirmation that [the defendant]
    understood the decision to proceed with the interview . . . was
    his alone, and that he in fact wished to do so.” (Id. at p. 220.)
    Much as in Williams and Sauceda-Contreras, we conclude
    that defendant’s “[n]o,” in context, was susceptible of more than
    one possible interpretation. Kusch therefore was not forbidden
    from asking his follow-up question to clarify defendant’s intent.
    We emphasize, as we did in these prior cases, that Kusch’s
    question was both brief and neutrally phrased and delivered;
    Kusch did not in any way badger defendant nor otherwise use
    coercive tactics to induce a waiver of his right to remain silent.
    (See Sauceda-Contreras, supra, 55 Cal.4th at p. 220 [“No
    coercive tactics were employed in order to obtain defendant’s
    waiver of his rights”]; Williams, 
    supra,
     49 Cal.4th at p. 429 [“it
    does not appear that the officers were ‘badgering’ defendant into
    waiving his rights”].) On the contrary, in clarifying whether
    defendant was willing to answer questions, Kusch reminded
    73
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    defendant—no fewer than three times—that he was under no
    obligation to do so.
    The dissent does not appear to take issue with the basic
    lesson of these cases: That, in some instances, context may raise
    questions about the meaning of a seemingly unequivocal
    response. Nor does the dissent dispute that, “[i]n those
    instances, the protective purpose of the Miranda rule is not
    impaired if the authorities are permitted to pose a limited
    number of followup questions” to clarify. (Williams, supra, 49
    Cal.4th at p. 429.) The dissent argues, however, that Kusch’s
    effort to clarify here was impermissible because defendant’s
    response was meaningfully less ambiguous, in context, than
    were the responses of the defendants in Sauceda-Contreras or
    Williams.
    Our prior cases are not easily distinguished on the
    grounds cited by the dissent. The dissent claims that Sauceda-
    Contreras differs from this case because the defendant’s
    invocation there was ambiguous “based on a number of facts, not
    just the nature of the detective’s question.” (Conc. & dis. opn.,
    post, at p. 10.) But surely the nature of the question matters in
    evaluating the meaning of the answer. And in any event, we
    have explained that, here, too, the available facts support the
    conclusion that defendant’s “[n]o” answer in response to Kusch’s
    poorly framed question may have rested on a misunderstanding
    of Kusch’s intended meaning.
    The dissent would distinguish Williams on the ground
    that the defendant there asked a question about timing (“ ‘You
    talking about now?’ ”) before responding “ ‘Yeah’ ” to the
    question “ ‘Do you want an attorney here while you talk to us?’ ”
    (Williams, 
    supra,
     49 Cal.4th at p. 426.) Here, by contrast,
    74
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    defendant did not ask Kusch questions when asked whether he
    wanted to “talk a little bit about that.” (Conc. & dis. opn., post,
    at p. 12.) But it is not clear why this distinction matters. In
    Williams, the interrogating officer’s question was clear, while
    here it was not. Nonetheless, despite the defendant’s seemingly
    absolute response to the officer’s question in Williams, we
    concluded there was “sufficient ambiguity” in the exchange
    “that a reasonable officer would be uncertain of defendant’s
    actual intent,” and that it was therefore reasonable to clarify.
    (Williams, supra, 49 Cal.4th at p. 431; see id. at p. 430.) The
    same is true here.
    The dissent relies heavily on Anderson v. Terhune (9th Cir.
    2008) 
    516 F.3d 781
    , but that case differs markedly from this one.
    There the court found it unambiguous when the defendant said,
    “ ‘I plead the Fifth,’ ” and concluded the interrogating officer did
    not ask a “legitimate clarifying question” when he responded,
    “ ‘Plead the Fifth. What’s that?’ ” (Id. at pp. 784, 787–790.) But
    unlike defendant’s simple “[n]o,” “ ‘I plead the Fifth’ ” is a
    “pristine invocation of the Fifth Amendment” that does not vary
    its meaning based on the question asked. (Id. at p. 784.) And
    unlike the interrogating officer’s feigned ignorance of the Fifth
    Amendment in Anderson, Kusch did ask a follow-up question
    legitimately aimed at clarifying defendant’s intent.
    Finally, in arguing it was improper for Kusch to ask his
    neutral follow-up question, defendant and the dissent rely on
    the testimony of Sergeant Robert Dean, who monitored Kusch’s
    interrogation in real time and testified about it during the
    evidentiary hearing. When asked whether he “ever hear[d]
    Mr. Flores ask for an attorney, ask to remain silent, or any
    nonverbal behavior that would tell you he didn’t want to talk to
    Lieutenant Kusch,” Dean said, “At one point. [¶] . . . [¶]
    75
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Lieutenant Kusch asked Mr. Flores if he wanted to talk about
    that, meaning the Maywood murder, and Alfred replied, ‘No.’ ”
    We do not find Dean’s characterization to be particularly telling.
    Dean’s testimony certainly provides one plausible interpretation
    of Kusch’s question (and, by extension, of defendant’s response).
    But as explained above, it is not the only plausible
    interpretation. Considering the exchange in its broader factual
    context, it was objectively reasonable for Kusch to ask his brief,
    neutrally worded follow-up question to ensure he understood
    what defendant meant. (See Williams, 
    supra,
     49 Cal.4th at
    p. 428 [the “question of ambiguity in an asserted invocation” is
    an “objective inquiry”].)
    In sum, in light of the circumstances surrounding
    defendant’s “[n]o” answer, we conclude a reasonable officer
    certainly could have understood that defendant might be
    invoking his right to remain silent but would not have
    understood whether he was in fact invoking his right to remain
    silent. (See Davis, 
    supra,
     512 U.S. at p. 459.) It was therefore
    reasonable to clarify. This conclusion is a narrow one, based on
    the particular circumstances surrounding the interrogation in
    this case. Although we ultimately agree with the trial court that
    defendant’s initial “[n]o” answer was unclear because Kusch’s
    initial question was imprecise, our conclusion is based on other
    contextual factors as well, including the background
    information known to Kusch and defendant’s demeanor and
    vocal inflection as recorded in the videotaped interview. We do
    not hold that an officer may purposefully create ambiguity in a
    suspect’s invocation of rights by asking an unclear question.
    Officers should do just the opposite. They should ask clear
    questions amenable to simple answers.            But given the
    circumstances of the case, we conclude Kusch acted reasonably
    76
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    in asking a neutral follow-up question to clarify whether
    defendant wished to answer questions, while repeatedly
    reminding defendant of his right to remain silent. (See
    Williams, 
    supra,
     49 Cal.4th at p. 428.)15
    15
    This conclusion also disposes of defendant’s alternative
    argument that even if his response was ambiguous, Kusch was
    obligated to stop and clarify whether defendant indeed intended
    to invoke his right to remain silent. For this argument,
    defendant relies on the Ninth Circuit’s opinion in U.S. v.
    Rodriguez (9th Cir. 2008) 
    518 F.3d 1072
    , 1080, in which the
    court held that “[p]rior to obtaining an unambiguous and
    unequivocal waiver, a duty rests with the interrogating officer
    to clarify any ambiguity before beginning general
    interrogation.” The court distinguished Davis, 
    supra,
     
    512 U.S. 452
    , 461–462, where the high court held that officers are
    permitted—but not required—to clarify ambiguous invocations
    that arise partway through lawful interrogations.
    This court has previously acknowledged the Ninth
    Circuit’s ruling in Rodriguez without expressly approving or
    rejecting it. (Duff, supra, 58 Cal.4th at p. 553 [noting that
    whereas “we have held that an officer is permitted to clarify the
    suspect’s intentions and desire to waive his or her Miranda
    rights,” the Ninth Circuit has held that “an officer not only may,
    but must, clarify the suspect’s intentions”]; see id. at p. 554
    [observing that “[w]e have occasionally implied the same rule as
    the Ninth Circuit’s,” citing People v. Box (2000) 
    23 Cal.4th 1153
    ,
    1194].) We do the same in this case: Even if Kusch was under
    a duty to stop and clarify defendant’s intent following his
    ambiguous response to the Miranda warnings, Kusch did just
    that.
    We likewise conclude that Kusch’s follow-up question was
    adequate for this task. As we explained in Duff, an officer is “not
    under a legal obligation to follow any particular script in
    ascertaining [the defendant’s] desires.” (Duff, supra, 58 Cal.4th
    at p. 554.) Kusch explained that what he was asking was
    whether defendant was willing to answer questions and
    77
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    b. Limited Waiver
    As noted above, when Kusch asked his follow-up question
    to clarify whether defendant was willing to answer questions,
    defendant this time responded affirmatively, if dispassionately:
    “Oh yeah, well whatever.” Defendant argues that even if this
    was a valid waiver of the right to remain silent, it was a limited
    one: It extended only to background questions about his name
    and age. He emphasizes that Kusch said, “[S]ome of the stuff I
    want to talk to you about is what’s your name and birth date
    and stuff like that.” It was immediately after this description
    that Kusch asked: “Do you want to take a few minutes and talk
    to me about that stuff?” Defendant argues, in effect, that the
    scope of Kusch’s question delimited the scope of his own answer,
    such that defendant’s waiver extended only to basic personal
    information. We disagree.
    A suspect may invoke his right to remain silent selectively.
    (People v. Suff (2014) 
    58 Cal.4th 1013
    , 1070.) For instance, in
    People v. Johnson (1993) 
    6 Cal.4th 1
    , we held that the
    defendant’s remark that he did not want to be tape-recorded
    placed a “ ‘partial restriction’ on his willingness to speak to the
    officers.” (Id. at p. 25.) Likewise, in People v. Clark (1992) 
    3 Cal.4th 41
    , we characterized the defendant’s waiver of the right
    to counsel as selective based on his statement that he was “ ‘not
    going to . . . talk any further about [a different crime] without
    an attorney.’ ” (Id. at p. 122.) The defendant’s waiver there only
    reiterated—multiple times—that defendant did not have to
    answer questions. Only after reviewing defendant’s rights and
    explaining the general nature of the interview did Kusch ask
    defendant if he wanted to “take a few minutes and talk.” When
    defendant clarified his intent, Kusch permissibly continued the
    interrogation.
    78
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    encompassed a willingness to speak on the primary crime.
    (Ibid.)
    Defendant’s statements here did not evince a comparable
    intent to waive his right to remain silent selectively. Even
    though his initial expression of willingness to speak with Kusch
    was dispassionate and arguably directed only to background
    questions “and stuff like that,” defendant continued to answer
    more substantive questions without any prodding by the officer.
    He points to nothing in the record that reflects his asserted
    desire to stop talking about the Jaimes murder. In contrast,
    there were multiple instances when defendant expressed an
    unwillingness to discuss events unrelated to his role in the
    Jaimes killing. Kusch asked defendant, for example, about a
    bullet hole found in the window screen of the motel room;
    defendant said, “Oh no, no, no, no. I won[’]t tell you how that
    happened.” Kusch honored defendant’s right not to speak about
    that. On another occasion, Kusch asked defendant whether
    there was another person involved; defendant said, “I’ll never
    tell you that man.” Kusch, again, did not pursue it. Defendant
    clearly knew how to exercise his right to remain silent
    selectively but chose to speak about the Jaimes murder. By
    willingly answering substantive questions about the crime,
    defendant impliedly waived his right to remain silent, without
    any limitation to only background information. (See Cruz,
    
    supra,
     44 Cal.4th at p. 667 [suspect can waive Miranda rights
    impliedly by willingly answering questions after acknowledging
    an understanding of his rights].)
    c. Voluntariness of Confession
    Finally, defendant contends that, even if he wholly waived
    his right to remain silent, his waiver was coerced and
    79
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    involuntary. The trial court disagreed: It concluded that “based
    on the totality of the circumstances and [the court’s] review of
    the entire interview process, it appears the defendant
    definitively, knowingly, intelligently, voluntarily waived his
    Miranda rights and he [was] willing to speak to Lieutenant
    Kusch based on the prior advisements, based on Lieutenant
    Kusch’s going over the Miranda rights again, and based on the
    defendant’s willingness to speak about this incident with
    Lieutenant Kusch after those rights were given.” We agree with
    the trial court.
    In determining whether the prosecution met its burden of
    establishing by a preponderance of the evidence that
    defendant’s confession was voluntary, we consider the totality of
    the circumstances. (Williams, 
    supra,
     49 Cal.4th at p. 436.)
    “[N]o single factor is dispositive. [Citation.] The question is
    whether the statement is the product of an ‘ “essentially free and
    unconstrained choice” ’ or whether the defendant’s ‘ “will has
    been overborne and his capacity for self-determination critically
    impaired” ’ by coercion.” (Ibid.)
    To the extent defendant’s argument is premised on
    Kusch’s failure to honor defendant’s asserted invocation of his
    Miranda rights, we have already rejected the basis of that claim.
    Defendant’s remaining arguments that Kusch utilized coercive
    interrogation tactics are belied by the record. At the start of the
    interview, Kusch reiterated defendant’s right to refuse to
    answer questions, stating, “[Y]ou know whether you choose to
    answer the questions is completely up to you,” and “you know
    you don’t have to answer any questions.” Following defendant’s
    initial expression of a dispassionate willingness to speak,
    defendant actively engaged in the interview. He appeared calm
    throughout. His confession was vivid, thorough, and largely
    80
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    without interruption; defendant even acted out part of his
    altercation with Jaimes and explained how the incident
    unfolded with reference to visual aids. (Cf. People v. Parker
    (2017) 
    2 Cal.5th 1184
    , 1216 [concluding beyond a reasonable
    doubt that the defendant voluntarily waived his Miranda rights
    where he “actively participate[d] in the conversation with the
    detectives—answering questions, asking for clarification, and
    generally contributing to a discussion he knew was being tape-
    recorded”].) Defendant’s clear understanding of his right to
    remain silent is evidenced by his selective refusal to answer
    certain questions throughout the interview. Notably, when
    defendant chose not to answer questions, Kusch respected that
    choice.
    Defendant also contends Kusch made a coercive “implied
    promise” that defendant could escape a murder charge if he
    waived his rights. We see no evidence of such coercion in the
    record. Defendant prompted the mention of murder charges by
    asking Kusch what charges would be brought against him.
    Kusch responded candidly that murder was the likely charge,
    but that there are certain “things that may mitigate” or
    “justif[y]” a killing and that the ultimate decision would fall to a
    jury. There was nothing improper or coercive about Kusch’s
    response.
    Ultimately, defendant’s own statements provide the
    strongest evidence that his admissions were made of his own
    free will. Defendant prefaced his confession with the following
    statement: “I’m gonna tell you what happened. [¶] . . . [¶] Not
    because I have to not because, I mean because I want to, ay. Cuz
    I feel what happened wasn’t right ay. You know what I mean?
    And I feel that I shouldn’t even have to be like this because of
    that. I feel that that’s that [sic] it wasn’t right. And I’m pretty
    81
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    sure you would do the same thing if you were in my shoes.”
    (Italics added.) Immediately before admitting to the murder,
    defendant expressed a similar sentiment, saying, “[I]f you guys
    want to charge me with murder or whatever, I know it’s for
    something righteous and I don’t mind that.” And after
    admitting to the murder, defendant said, “I enjoyed doing it ay.
    I’m gonna tell you why, because it was defending my mother.”
    He repeated this theme later saying, “[L]ike I told you I mean,
    I’m telling you the story all right because it’s righteous and I’d
    rather you guys convict me.” In light of these statements, we
    see no reason to doubt that defendant’s confession was “the
    product of an ‘ “essentially free and unconstrained choice.” ’ ”
    (Williams, 
    supra,
     49 Cal.4th at p. 436.) We hold that, in view of
    the totality of circumstances—with great weight given to
    defendant’s own statements—the prosecution met its burden of
    establishing that defendant’s confession was voluntary.
    B. Claim of Prosecutorial Misconduct
    Defendant claims the prosecutor committed misconduct at
    the penalty phase by soliciting inadmissible hearsay in her
    direct examination of Lieutenant Kusch. The prosecutor did err
    by asking, “Now, did you at some point—well basically Lillian
    Perez told you basically her son is the one who shot Mr. Jaimes,
    correct?” Kusch answered, “In short, yes.” Defense counsel then
    objected on hearsay grounds. The court sustained the objection
    and granted defendant’s motion to strike.
    To have a conviction or sentence reversed for prosecutorial
    misconduct, a defendant must show it is reasonably probable
    that a result more favorable would have been reached without
    the misconduct. (See Crew, 
    supra,
     31 Cal.4th at p. 839.)
    Defendant fails to demonstrate any prejudice from the
    82
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    prosecution’s single question soliciting hearsay. The trial court
    sustained defendant’s objection and struck the answer, thereby
    eliminating any prejudice from the improper testimony. (People
    v. Tully, supra, 54 Cal.4th at p. 1038.)          Moreover, the
    prosecution properly introduced defendant’s detailed confession
    to the Jaimes murder, which was corroborated by testimony by
    a firearms expert, who opined that the same gun was used in
    the Jaimes murder as in the shooting of defendant’s former
    girlfriend, Mary Muro. Even without the prosecutor’s question
    and Kusch’s response, it is highly unlikely the jury would have
    reached a different result.
    C. Instructions on Mitigating and Aggravating
    Factors
    The trial court instructed the jury to take into account all
    aggravating and mitigating factors listed in Penal Code section
    190.3, factors (a) through (k), “if applicable” in determining the
    appropriate penalty. As we have consistently held, the jury is
    capable of deciding which factors are “ ‘applicable.’ ” (People v.
    Ghent (1987) 
    43 Cal.3d 739
    , 777.) Defendant offers no
    persuasive reason for us to overturn this settled law.
    Defendant further claims the trial court erred by failing to
    instruct the jury sua sponte that the absence of a mitigating
    factor is not itself aggravating. Although such an instruction
    would have been a true statement of the law, we have long held
    that a court has no duty to give this instruction unless the court
    or a party suggests that the absence of mitigation is
    aggravating. (People v. Livaditis (1992) 
    2 Cal.4th 759
    , 784–785.)
    There was no such suggestion here.
    83
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    D. Eighth Amendment Challenge to the Death
    Penalty for Those Age 21 and Under
    Defendant argues the death penalty may not be
    constitutionally applied to persons who were 21 years of age or
    younger at the time of their crimes, as defendant was in this
    case. Specifically, he argues the death penalty for those 21 and
    younger is “cruel and unusual” under the Eighth Amendment to
    the United States Constitution, which has been incorporated
    against the states through the Fourteenth Amendment.
    The United States Supreme Court has held that the
    Eighth Amendment bars imposition of the death penalty on
    individuals who were under 18 at the time of their offenses.
    (Roper v. Simmons (2005) 
    543 U.S. 551
    , 574 (Roper).) Defendant
    asks us to expand Roper to reach those ages 18 to 21, arguing
    that research shows that young adults suffer from many of the
    same cognitive and developmental deficiencies as adolescents.
    We have previously rejected similar arguments, most recently
    just two years ago in People v. Powell (2018) 
    6 Cal.5th 136
    , 191.
    (Accord, People v. Gamache (2010) 
    48 Cal.4th 347
    , 405.) As we
    noted in those cases, the high court in Roper recognized that the
    “ ‘qualities that distinguish juveniles from adults do not
    disappear when an individual turns 18,’ ” but nonetheless held
    that the “ ‘age of 18 is the point where society draws the line for
    many purposes between childhood and adulthood’ ” and is “ ‘the
    age at which the line for death eligibility ought to rest.’ ”
    (Powell, at pp. 191–192, quoting Roper, at p. 574.)
    Defendant makes no persuasive argument for
    reconsidering this precedent here. He does point to various
    developments from the past few years, including a 2018
    resolution from the American Bar Association House of
    Delegates urging the prohibition of the death penalty for those
    84
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    ages 21 and under (Res. No. 111 (Feb. 2018)); a nonprecedential
    opinion from a trial court in Kentucky declaring the death
    penalty unconstitutional for this same group (Commonwealth v.
    Bredhold (Ky.Cir.Ct., Aug. 1, 2017, No. 14-CR-161) 
    2017 WL 8792559
    ); and the California Legislature’s expansion of Penal
    Code section 3051, subdivision (a)(1), which provides “youth
    offender parole hearing[s]” to inmates who were 25 or younger
    at the time of their commitment offense.             But these
    developments do not establish the “national consensus”
    necessary to justify a categorical bar on the death penalty for
    individuals between the ages of 18 and 21 at the time of their
    offenses. (Atkins v. Virginia (2002) 
    536 U.S. 304
    , 316.) Nor has
    defendant presented much in the way of new scientific evidence
    that might be relevant to the issue.
    Defendant further contends that, for those ages 18 to 21,
    a death sentence is inherently unreliable. The United States
    Supreme Court has recognized that “the features that
    distinguish juveniles from adults also put them at a significant
    disadvantage in criminal proceedings.” (Graham v. Florida
    (2010) 
    560 U.S. 48
    , 78.) Juveniles may, for example, “mistrust
    adults,” “have limited understandings of the criminal justice
    system,” and have trouble “work[ing] effectively with their
    lawyers to aid in their defense.” (Ibid.) But, again, the high
    court has concluded that the federal Constitution draws the line
    at age 18. (Id. at pp. 74–75.) There was no Eighth Amendment
    violation here.
    E. Constitutionality of California’s Death Penalty
    Law
    Defendant claims his death sentence violates the United
    States Constitution; we reject his contentions, as we have in
    previous cases. “California’s death penalty statute is not
    85
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    impermissibly broad and adequately narrows the class of death-
    eligible defendants.” (People v. Brady (2010) 
    50 Cal.4th 547
    ,
    590.) Penal Code section 190.3, factor (a), which directs the jury
    to consider the “circumstances of the crime” in determining the
    penalty, is not unconstitutionally vague, nor does it violate the
    Eighth Amendment. (Tuilaepa v. California (1994) 
    512 U.S. 967
    , 980.) The death penalty statute is not unconstitutional
    because it does not require “findings beyond a reasonable doubt
    that an aggravating circumstance (other than Pen. Code,
    § 190.3, factor (b) or factor (c) evidence) has been proved, that
    the aggravating factors outweighed the mitigating factors, or
    that death is the appropriate sentence.” (People v. Rangel (2016)
    
    62 Cal.4th 1192
    , 1235.) The absence of written findings by the
    jury does not render the California death penalty scheme
    unconstitutional. (People v. McDowell (2012) 
    54 Cal.4th 395
    ,
    444.) Nor does the lack of intercase proportionality review.
    (People v. Clark (1993) 
    5 Cal.4th 950
    , 1039; Pulley v. Harris
    (1984) 
    465 U.S. 37
    , 44.) And the use of restrictive adjectives,
    such as “ ‘extreme’ ” and “ ‘substantial’ ” in section 190.3’s list of
    mitigating factors, “does not act unconstitutionally as a barrier
    to the consideration of mitigation.” (People v. Hoyos (2007) 
    41 Cal.4th 872
    , 927.) The use of the prefatory “whether or not” in
    certain mitigating factors does not invite the jury to convert
    those mitigating factors into aggravating circumstances.
    (People v. Morrison (2004) 
    34 Cal.4th 698
    , 730.) Capital
    defendants are not similarly situated to noncapital defendants;
    thus, providing certain procedural protections to noncapital
    defendants but not to capital defendants is not unconstitutional.
    (People v. Scott (2011) 
    52 Cal.4th 452
    , 497.) The death penalty
    as applied in California does not violate international law.
    (Ibid.)
    86
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    The high court’s decision in Roper, 
    supra,
     
    543 U.S. 551
     did
    not preclude admission of evidence of defendant’s juvenile
    criminal activity as an aggravating factor. (People v. Taylor
    (2010) 
    48 Cal.4th 574
    , 653; Bramit, 
    supra,
     46 Cal.4th at
    p. 1239.)
    The trial court did not err by admitting victim impact
    testimony evidence from the murder victims’ family members.
    (Payne v. Tennessee (1991) 
    501 U.S. 808
    , 825.) The prosecution
    “ ‘has a legitimate interest in counteracting the mitigating
    evidence which the defendant is entitled to put in, by reminding
    the sentencer that just as the murderer should be considered as
    an individual, so too the victim is an individual whose death
    represents a unique loss to society and in particular to his
    family.’ ” (Ibid; see also People v. Edwards, 
    supra,
     54 Cal.3d at
    p. 835.)
    F. Cumulative Error
    Defendant argues that the claimed errors at trial
    cumulatively rose to the level of reversible and prejudicial error.
    Whether considered separately or together, the three or four
    minor errors at defendant’s trial were harmless and did not
    interfere with his due process right to a fair trial.
    G. Enhancements Imposed Under Penal Code
    Section 12022.53, Subdivision (d)
    In addition to convicting defendant of three counts of first
    degree murder, the trial jury found true as to each count that
    defendant personally and intentionally discharged a firearm in
    violation of Penal Code section 12022.53, subdivision (d) (section
    12022.53(d)). Section 12022.53(d) imposes a 25-years-to-life
    sentencing enhancement for each count as to which it attaches.
    Because defendant was sentenced to death, the court imposed
    87
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    but stayed the section 12022.53(d) enhancements. (See Pen.
    Code, § 654.)         When defendant was sentenced, these
    enhancements were mandatory. (§ 12022.53, former subd. (h).)
    But the Legislature subsequently passed Senate Bill No. 620
    (2019–2020 Reg. Sess.), which amended section 12022.53 to now
    provide that “[t]he court may, in the interest of justice . . . strike
    or dismiss an enhancement otherwise required to be imposed by
    this section.”       (§ 12022.53, subd. (h).)       In his second
    supplemental brief, defendant asks us to remand his case to the
    trial court for it to exercise the discretion section 12022.53 now
    provides. The Attorney General concedes that the revision of
    section 12022.53 applies retroactively to defendant’s case but
    argues a remand is unnecessary here. We agree with the
    Attorney General.
    “ ‘Defendants are entitled to sentencing decisions made in
    the exercise of the “informed discretion” of the sentencing court.
    [Citations.] A court which is unaware of the scope of its
    discretionary powers can no more exercise that “informed
    discretion” than one whose sentence is or may have been based
    on misinformation regarding a material aspect of a defendant’s
    record.’ [Citation.] In such circumstances, we have held that
    the appropriate remedy is to remand for resentencing unless the
    record ‘clearly indicate[s]’ that the trial court would have
    reached the same conclusion ‘even if it had been aware that it
    had such discretion.’ ” (People v. Gutierrez (2014) 
    58 Cal.4th 1354
    , 1391.)
    The record in this case demonstrates with unusual clarity
    that remand would be an idle act. (See People v. McDaniels
    (2018) 
    22 Cal.App.5th 420
    , 425.) At sentencing, the trial court
    said, “[Q]uite frankly, based on what I know about the defendant
    and based on what I know the defendant did . . . I think
    88
    PEOPLE v. FLORES
    Opinion of the Court by Kruger, J.
    Mr. Flores does fall into the category of the worst of the worst
    offenders thereby deserving the ultimate sentence of death.” It
    “believe[d] that in this situation the punishment does fit the
    crimes based on the senseless murders of four separate
    individuals, three being charged in the information in this case.”
    Defendant, the court remarked, “show[ed] absolutely no
    remorse”; “[i]t’s as if he has no soul.” In the court’s “opinion[,]
    justice will be served” by a death sentence. Given that the trial
    court explicitly said it thought it “just[]” for defendant to receive
    a death sentence—the most severe sentence available under
    California law—it is clear the trial court would not have
    exercised its discretion to eliminate the firearm enhancements
    “in the interest of justice,” had such discretion been available to
    it at the time of sentencing (Pen Code., § 12022.53, subd. (h)).
    Under these circumstances, a remand is not required.16
    V. DISPOSITION
    We affirm the judgment, including the judgment of death.
    KRUGER, J.
    We Concur:
    CANTIL-SAKAUYE, C. J.
    CHIN, J.
    CORRIGAN, J.
    GROBAN, J.
    16
    We express no opinion here on the utility of remand for
    application of Penal Code section 12022.53, subdivision (h)
    where the record shows the trial court approved of a high
    sentence short of the death penalty.
    89
    PEOPLE v. FLORES
    S116307
    Concurring and Dissenting Opinion by Justice Liu
    During the penalty phase of this case, the trial court
    admitted a videotaped interrogation in which defendant Alfred
    Flores confessed to the murder of Mark Jaimes. At the
    beginning of the interrogation, Lieutenant Roderick Kusch
    asked Flores if he wanted to talk about the Jaimes murder.
    Flores responded, “No.” His response was an unequivocal
    invocation of his right to silence, requiring the interrogation to
    stop. (Miranda v. Arizona (1966) 
    384 U.S. 436
     (Miranda).) But
    Kusch continued the interrogation, and the evidence obtained
    was quite damaging: Flores described in detail how he killed
    Jaimes and said he “enjoyed doing it.” Because this evidence
    was admitted in violation of Flores’s right to silence under
    Miranda, the penalty judgment cannot stand.
    Today’s opinion declines to hold that “No” means no and
    instead treats Flores’s simple one-word answer as a “question[]
    of interpretation.” (Maj. opn., ante, at p. 66.) Invoking the
    truism that “context does matter” (ibid.), the court undertakes
    an exquisite parsing of the interrogation and conjures ambiguity
    from an implausible reading of ordinary language and from
    signals so faint as Flores’s fleeting smile on a grainy videotape.
    This is an exercise at which lawyers (especially lawyers in robes)
    may excel. But the Miranda warnings and the rights they
    secure are for everyday people, and “[i]nterpretation is only
    required where the defendant’s words, understood as ordinary
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    people would understand them, are ambiguous.” (Connecticut v.
    Barrett (1987) 
    479 U.S. 523
    , 529 (Barrett).) The right to silence
    is one of the fundamental ground rules for interactions between
    citizens and the police. Today’s decision erodes that right and,
    in its speculative reasoning, sets a dangerous precedent.
    I.
    For half a century, it has been settled law that “if a person
    in custody is to be subjected to interrogation, he must first be
    informed in clear and unequivocal terms that he has the right
    to remain silent. . . .     [S]uch a warning is an absolute
    prerequisite in overcoming the inherent pressures of the
    interrogation atmosphere. . . . Further, the warning will show
    the individual that his interrogators are prepared to recognize
    his privilege should he choose to exercise it.” (Miranda, supra,
    384 U.S. at pp. 467–468.) “Once warnings have been given, the
    subsequent procedure is clear. If the individual indicates in any
    manner, at any time prior to or during questioning, that he
    wishes to remain silent, the interrogation must cease.” (Id. at
    pp. 473–474.)
    In order to invoke the right to silence, the suspect must do
    so unambiguously from the perspective of a reasonable officer.
    (Berghuis v. Thompkins (2010) 
    560 U.S. 370
    , 381; see Davis v.
    United States (1994) 
    512 U.S. 452
    , 459 (Davis).) A suspect need
    not “ ‘speak with the discrimination of an Oxford don’ ” in order
    to invoke Miranda rights, but the suspect must speak
    “sufficiently clearly that a reasonable police officer in the
    circumstances would understand the statement to be” an
    invocation. (Davis, at p. 459; see 
    ibid.
     [“this is an objective
    inquiry”].)
    2
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    When a suspect has clearly expressed a desire not to talk,
    “it is presumed that any subsequent waiver that has come at the
    authorities’ behest, and not at the suspect’s own instigation, is
    itself . . . not the purely voluntary choice of the suspect.”
    (Arizona v. Roberson (1988) 
    486 U.S. 675
    , 681.) The reason is
    that “subsequent requests for interrogation” in the face of a clear
    invocation “pose a significantly greater risk of coercion. That
    increased risk results not only from the police’s persistence in
    trying to get the suspect to talk, but also from the continued
    pressure that begins when the individual is taken into custody
    as a suspect and sought to be interrogated — pressure likely to
    ‘increase as custody is prolonged.’ ” (Maryland v. Shatzer (2010)
    
    559 U.S. 98
    , 105.) Any statements or evidence obtained in
    disregard of a suspect’s invocation of the right to silence are
    inadmissible. (Michigan v. Mosley (1975) 
    423 U.S. 96
    , 104.)
    II.
    Applying an objective inquiry, I see no ambiguity in
    Flores’s invocation of his right to remain silent. Lieutenant
    Kusch asked Flores if he wanted to speak about the Jaimes
    murder, and Flores’s response, “No,” indicated that he did not
    want to speak about it.
    Today’s opinion accurately recounts the portion of the
    interrogation at issue. (Maj. opn., ante, at pp. 61–62.) From the
    beginning, Kusch made clear to Flores that he planned to ask
    him about a Los Angeles case that occurred on November 17,
    2000 — i.e., the Jaimes homicide. Kusch began, “I’m Rod Kusch
    uh one of the investigators on a case that happened out in
    Maywood [in Los Angeles County] . . . . [T]he case I’d like to take
    a minute and chat with you about uh is uh a case we’re
    investigating happened back on November 17th back in uh
    3
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    2000. So pushing close to a year about nine months I guess right
    about now or so.” He repeated his intention to ask about the
    Jaimes homicide by saying, “I can tell you right now that we in
    Los Angeles County do not have a warrant for your arrest on
    any case that I’m investigating. So uh I didn’t or I wanted to
    have an opportunity to chat with you first and uh try to clear up
    some loose ends and try to get a clear picture of what happened.”
    Kusch then read Flores his Miranda rights and confirmed that
    Flores understood them. Next, Kusch asked Flores the critical
    question: “Basically what I’d like to do is talk about the case that
    we investigated that we got called out on back on November 17th,
    2000. Uh I’ll tell you how we got called out on it in a minute but
    uh do you want to take a few minutes to talk a little bit about
    that?” (Italics added.) Flores answered, “No.” Today’s opinion
    says the answer sounds more like “Nah” on the videotape (maj.
    opn., ante, at p. 62), but no one disputes that “Nah” is
    synonymous with the word “No,” which is what appears in the
    transcript.
    There is no ambiguity in this exchange. The word “that”
    at the very end of Kusch’s question plainly refers to “the case”
    that the Los Angeles Police Department (LAPD) “got called out
    on back on November 17th, 2000,” which was the Jaimes
    homicide. Flores’s answer, “No,” indicated he did not want to
    talk about it. At that point, Kusch was required to stop all
    questioning regarding the Jaimes murder. Instead, Kusch
    rephrased his question and continued the interrogation until he
    eventually elicited a confession from Flores. Today’s opinion
    characterizes Kusch’s question immediately following Flores’s
    “No” as merely a clarifying question. (Maj. opn., ante, at p. 66
    & fn. 12.) But whether Kusch’s subsequent question was
    intended to clarify Flores’s response or to ignore it is irrelevant
    4
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    for purposes of determining whether it was constitutionally
    permissible. The high court has repeatedly held that “[w]here
    nothing about the request for counsel or the circumstances
    leading up to the request would render it ambiguous, all
    questioning must cease.” (Smith v. Illinois (1984) 
    469 U.S. 91
    ,
    98; see Fare v. Michael C. (1979) 
    442 U.S. 707
    , 719 [“[A]n
    accused’s request for an attorney is per se an invocation of his
    Fifth Amendment rights, requiring that all interrogation
    cease.”]; Miranda, 
    supra,
     384 U.S. at pp. 473–474 [“If the
    individual indicates in any manner, at any time prior to or
    during questioning, that he wishes to remain silent, the
    interrogation must cease.”].)
    While acknowledging that the word “no” in response to
    whether a suspect wishes to speak with the police will “generally
    constitute[] an unambiguous invocation,” the court says that
    “here, considered in context, neither the question asked, nor the
    answer given was this simple . . . .” (Maj. opn., ante, at p. 66.)
    Of course, context matters. But none of the contextual
    circumstances discussed in today’s opinion comes close to
    suggesting that Flores’s “No” could have meant something other
    than that he did not want to talk about the Jaimes murder.
    First, today’s opinion posits that when Kusch asked Flores
    if he wanted to “talk a little bit about that,” Kusch could have
    been asking Flores “whether he was willing to answer questions
    about the Jaimes case or whether defendant wanted to talk
    about how ‘we got called out on it.’ ” (Maj. opn., ante, at pp. 67–
    68.) Because the question was ambiguous, the court says, a
    reasonable officer could have interpreted Flores’s response to
    mean either, “ ‘No, I do not want to talk to you at all,’ or ‘No, I
    do not want to hear about how the police got called out.’ ” (Id.
    at p. 68.) But this reading of the interview evinces “a disregard
    5
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    of the ordinary meaning of [Kusch’s and Flores’s] statement[s].”
    (Barrett, 
    supra,
     479 U.S. at p. 530.) The plain language and flow
    of Kusch’s prefatory statements, in the transcript and on
    videotape, leave no doubt that he was asking Flores to talk
    about the Jaimes murder when he asked if Flores wanted to
    “talk a little bit about that.”
    Recall that Kusch immediately prefaced his question by
    saying he would “tell [Flores] how we got called out on [the case]
    in a minute,” thereby indicating that Kusch was tabling that
    topic for later. So, when Kusch asked in the next clause, “do you
    want to take a few minutes to talk a bit about that,” he was
    plainly asking Flores if he wanted to talk about the case itself.
    Kusch’s question was not an offer to share information with
    Flores; it was an invitation for Flores to speak. The court
    compares Kusch’s phrasing to “the age-old ‘We need to talk’ ”
    (maj. opn., ante, at p. 68, fn. 13), but this was a police
    interrogation, not a heart-to-heart. A reasonable officer would
    not interpret Flores’s response to mean, “ ‘No, I do not want to
    hear about how the police got called out.’ ” (Id. at p. 68, italics
    added.)
    Equally important, consider the context of the question:
    Having opened the interrogation by saying he wanted “to get a
    clear picture of what happened” in a case that occurred on
    November 17, 2000, why would Kusch then ask Flores whether
    he wanted to hear about how the LAPD “got called out” on the
    case? Kusch already knew how the LAPD got called out; his
    stated objective was to get Flores to talk about “what happened”
    in the homicide. No reasonable officer could have understood
    the exchange as anything but an effort to ask Flores to discuss
    the case itself, not how the LAPD got called out. Indeed, a
    firsthand witness to the interrogation — a police officer no less
    6
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    — confirmed this understanding: Sergeant Robert Dean, who
    monitored the interview in real time, testified that “[a]t one
    point . . . . Lieutenant Kusch asked Mr. Flores if he wanted to
    talk about that, meaning the Maywood murder, and Alfred
    replied, ‘No.’ ” (Italics added.)
    Today’s opinion speculates that because Flores’s mother
    “played a central role” in the LAPD’s investigation of the crime,
    how the LAPD “got called out on” the murder “may have been a
    subject of particular personal importance to defendant.” (Maj.
    opn., ante, at p. 69.) To be clear, Flores’s mother did not play a
    central role in how the LAPD “got called out on” the case. Kusch
    and the LAPD were alerted to the Jaimes homicide by Rick
    Milam, who had discovered Jaimes’s body in the trunk of his car.
    Only after Kusch had begun investigating the case, identified
    the body, and interviewed Jaimes’s family members did Kusch
    learn that Milam and Jaimes had been clients of Flores’s mother
    and that Milam’s car had disappeared while Milam was with
    Flores’s mother in a motel room.
    But even assuming that the topic of how the LAPD “got
    called out” would have involved a reference to Flores’s mother,
    the court’s reliance on this point is unpersuasive for the simple
    reason that Flores’s mother played a central role in the events
    surrounding Jaimes’s murder itself. On the night Jaimes was
    killed, he had solicited Flores’s mother as a prostitute and
    refused to promptly leave the motel where Flores and his mother
    were living when Flores confronted him. (Maj. opn., ante, at
    p. 8.) Kusch knew these facts because he had interviewed
    Flores’s mother before the interrogation, and she had recounted
    the events of the Jaimes murder to him. So, any sensitivity
    Flores might have had about his mother could not have led a
    reasonable officer in Kusch’s position to infer that Flores’s “No”
    7
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    was a refusal to hear about how the LAPD got called out on the
    case as opposed to a refusal to talk about the Jaimes murder.
    To the contrary, given the tangential role of Flores’s mother in
    how the LAPD got called out and her far more significant role in
    the events leading to the Jaimes murder itself, any such
    sensitivity would have bolstered the plain meaning of Flores’s
    “No”: He did not want to talk about the Jaimes murder.
    Second, the court notes that Flores answered Kusch’s
    question with “a casual-sounding ‘no,’ or, perhaps, ‘nah’; as he
    says this, defendant is still smiling and gives a short laugh. The
    dissonance between defendant’s bemused demeanor and his
    spoken response is confusing; the combined effect is murky and
    unclear.” (Maj. opn., ante, at pp. 69–70.) This is a remarkable
    dissection of a fleeting snippet of grainy video footage recorded
    almost 20 years ago on VHS cassette tape. Having watched the
    tape, I see no lack of seriousness in Flores’s response to Kusch’s
    question. But even accepting the court’s description of Flores’s
    demeanor, these faint cues (which seem indicative of
    nervousness more than anything else) are not remotely
    sufficient to cast doubt on Flores’s spoken word, “No.” (See
    Barrett, 
    supra,
     479 U.S. at p. 529 [“Interpretation is only
    required where the defendant’s words, understood as ordinary
    people would understand them, are ambiguous.”].) After today’s
    decision, ordinary people must beware: If you say “no” when the
    police ask if you want to talk, your answer better not be too
    “casual-sounding,” and you better not “smil[e]” or “laugh” or
    betray, in a judge’s estimation, a “bemused demeanor.” (Maj.
    opn., ante, at pp. 69–70.)
    This aspect of the court’s opinion is especially misguided
    because judges are not theater critics and suspects facing
    custodial interrogation are not method actors. I would like to
    8
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    believe that today’s decision is “a narrow one, based on the
    particular circumstances surrounding the interrogation in this
    case.” (Maj. opn., ante, at p. 76.) But I fear it portends further
    erosion of Miranda rights. Under its reasoning, interrogating
    officers, whether unscrupulous or well intentioned, need not
    take “no” for an answer if they can parse a suspect’s intonation,
    facial expression, or body language for hints of uncertainty. In
    cases without a videotape, courts will have little basis to reject
    an officer’s sworn testimony that a suspect’s refusal to talk, as
    indicated by the word “no,” was “confusing,” “murky,” or
    “unclear” in light of the suspect’s demeanor and therefore
    warranted further questioning to “clarify [the] defendant’s
    intent.” (Maj. opn., ante, at p. 70.) We should not open the door
    to such “interpretation” (id. at p. 66) when the suspect has used
    clear language.
    Third, the court explains that because Kusch knew Flores
    had willingly talked the previous day about the murders of
    Ricardo Torres, Jason Van Kleef, and Alexander Ayala, a
    reasonable officer in Kusch’s position would have had no reason
    to think Flores would be unwilling to talk about the Jaimes
    murder as well. But this gets the presumption backwards: The
    law “presume[s] that a defendant did not waive his rights”
    (North Carolina v. Butler (1979) 
    441 U.S. 369
    , 373), and “[a]
    person may invoke his Miranda rights selectively” (People v.
    Suff (2014) 
    58 Cal.4th 1013
    , 1070). The fact that Flores
    previously agreed to talk about a different case to different
    officers the day before does not raise a presumption that he was
    willing to talk about the Jaimes murder. (See Anderson v.
    Terhune (9th Cir. 2008) 
    516 F.3d 781
    , 788 (en banc) (Anderson)
    [“[T]he fact that [the defendant] had answered the officers’
    questions for over two hours does not somehow undermine or
    9
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    cast doubt on an unambiguous invocation.”].) And even if some
    presumption could have been drawn by Flores’s willingness to
    talk about a different case, it was certainly overcome when
    Flores said, “No.”
    Finally, today’s opinion compares this case to People v.
    Sauceda-Contreras (2012) 
    55 Cal.4th 203
     (Sauceda-Contreras)
    and People v. Williams (2010) 
    49 Cal.4th 405
     (Williams), both of
    which held that asserted Miranda invocations were ambiguous.
    Both cases are distinguishable.
    In Sauceda-Contreras, a detective read the defendant his
    Miranda rights and then asked through a translator: “ ‘Having
    in mind these rights . . . , the detective would like to know if he
    can speak with you right now?’ ” (Sauceda-Contreras, supra, 55
    Cal.4th at p. 216.) Sauceda-Contreras responded: “ ‘If you can
    bring me a lawyer, that way I[,] I with who . . . that way I can
    tell you everything that I know and everything that I need to
    tell you and someone to represent me.’ ” (Ibid.) We held that
    Sauceda-Contreras’s invocation was “conditional, ambiguous,
    and equivocal” based on a number of facts, not just the nature of
    the detective’s question. (Id. at p. 219.) We said, “It was
    conditional in that it began with an inquiry as to whether a
    lawyer could be brought to defendant. By responding ‘[i]f you
    can bring me a lawyer . . .’ (italics added), defendant was
    expressly asking the officer whether a lawyer could be brought
    to him, and impliedly asking whether one could be provided
    right now, given that the officer had asked him if he would speak
    with Detective Blazek ‘right now.’ It was equivocal in that
    defendant went on to plainly state his intent and desire to waive
    his right to remain silent and ‘tell you everything that I know
    and everything that I need to tell you,’ but then ended his
    response ambiguously with the words ‘and someone to represent
    10
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    me.’ From an objective standpoint, a reasonable officer under
    the circumstances would not have understood defendant’s
    response to be a clear and unequivocal request for counsel.”
    (Ibid.) Flores’s one-word statement, “No,” is nothing like the
    defendant’s winding statement in Sauceda-Contreras.
    Moreover, Sauceda-Contreras did not rely on non-verbal cues to
    find ambiguity as today’s opinion does.
    In Williams, after an interrogator read the defendant his
    Miranda rights and confirmed his understanding of them, the
    following exchange occurred:
    “[Interrogator]: ‘Do you wish to give up your right to
    remain silent?’
    “[Williams]:       ‘Yeah.’
    “[Interrogator]: ‘Do you wish to give up the right to speak
    to an attorney and have him present
    during questioning?’
    “[Williams]:       ‘You talking about now?’
    “[Interrogator]: ‘Do you want an attorney here while you
    talk to us?’
    “[Williams]:       ‘Yeah.’
    “[Interrogator]: ‘Yes you do.’
    “[Williams]:       ‘Uh huh.’
    “[Interrogator]: ‘Are you sure?’
    “[Williams]:       ‘Yes.’
    “[Interrogator]: ‘You don’t want to talk to us right now.’
    “[Williams]:       ‘Yeah, I’ll talk to you right now.’
    “[Interrogator]: ‘Without an attorney.’
    11
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    “[Williams]:       ‘Yeah.’ ”
    (Williams, 
    supra,
     49 Cal.4th at p. 426.)
    We concluded that Williams’s request for counsel was
    ambiguous because “[h]e already had agreed to waive his right
    to remain silent, and his question [‘You talking about now?’]
    suggests to us that his willingness to waive the assistance of
    counsel turned on whether he could secure the presence of
    counsel immediately.” (Williams, supra, 49 Cal.4th at p. 426.)
    Here, by contrast, Flores did not ask Kusch any questions
    suggesting that his willingness to waive his right to silence was
    conditional. His response to whether he wanted to talk about
    the Jaimes case was simply “No.”
    In sum, there is nothing ambiguous or confusing in the
    words spoken by Kusch and Flores “as ordinary people would
    understand them.” (Barrett, supra, 479 U.S. at p. 529.) Kusch
    asked Flores a yes-or-no question about whether he wanted to
    speak about the Jaimes case. Flores said, “No.” I am unsure
    how an ordinary person (or even an Oxford don) could have more
    clearly expressed his desire to remain silent. As for “context,”
    the Ninth Circuit put it well in an en banc opinion rejecting a
    California decision purporting to find ambiguity on interpretive
    grounds similar to those offered by the court today: “Using
    ‘context’ to transform an unambiguous invocation into open-
    ended ambiguity defies both common sense and established
    Supreme Court law. It is not that context is unimportant, but it
    simply cannot be manufactured by straining to raise a question
    regarding the intended scope of a facially unambiguous
    invocation of the right to silence.” (Anderson, 
    supra,
     516 F.3d at
    p. 787.) Because there was nothing in Flores’s response for
    Kusch to clarify, Kusch’s continued questioning of Flores
    12
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    violated Miranda, and the trial court erred in admitting Flores’s
    self-incriminating statements about the Jaimes homicide.
    III.
    The error was not harmless beyond a reasonable doubt.
    (Chapman v. California (1967) 
    386 U.S. 18
    , 24.) During the
    penalty phase, the prosecution introduced evidence that Flores
    committed several crimes unrelated to the three murders,
    including brandishing a gun while driving to a birthday party,
    assaulting a correctional officer while a ward at a youth
    correctional facility, participating in the nonfatal shooting of his
    ex-girlfriend, stabbing his sister’s boyfriend, committing two
    armed robberies with other El Monte Trece gang members,
    possessing a “slashing type weapon” while in custody, and
    murdering Jaimes. The prosecution also introduced victim
    impact statements from members of the Torres, Van Kleef, and
    Ayala families.
    In mitigation, Flores introduced evidence of the harsh
    conditions for prisoners sentenced to life without parole, as well
    as the low risk of escape in the prisons housing such inmates.
    Retired police officer Steven Strong testified that individuals
    from “broken homes” like Flores’s often joined gangs at a young
    age and learned to resolve problems through violence. Strong
    read transcripts of interviews with Flores’s mother, father, two
    sisters, and the adoptive mother of his youngest brother. Based
    on these interviews, Strong testified that Flores had an unstable
    childhood and was “bounced around . . . from different family
    members to social services.” At the age of two, Flores was
    separated from his brother, who was adopted by another set of
    parents. Both of Flores’s parents were imprisoned for drug
    offenses, and at the age of 11 or 12, Flores became involved in
    13
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    gang life because the authority figures he lived with were in
    gangs.
    In view of the evidence offered at trial, there is a
    reasonable possibility that exclusion of the Jaimes confession
    tape would have resulted in a different verdict. First, the hour-
    long taped interrogation provided the only direct evidence that
    Flores killed Jaimes. During the penalty phase, the jury heard
    Flores confess, “I murdered him [Jaimes] ay. I did it. All right?
    And I enjoyed doing it ay,” and “I pulled out my gun and I blew
    his fucking head off ay.” Flores then described the events
    leading up to the murder and his motivation for killing Jaimes.
    “A confession is like no other evidence. Indeed, ‘the defendant’s
    own confession is probably the most probative and damaging
    evidence that can be admitted against him.’ ” (Arizona v.
    Fulminante (1991) 
    499 U.S. 279
    , 296.) Although the prosecution
    also introduced circumstantial evidence to corroborate Flores’s
    statements on the tape, the tape itself provided the primary
    evidence and motivation for the murder.
    Second, although the prosecution presented evidence that
    Flores may have committed a number of prior offenses during
    the penalty phase, the Jaimes murder was the most serious.
    During closing argument, the prosecution recounted several of
    Flores’s past offenses and then said, “But it didn’t end there, and
    we know that. Because there had to be something even worse.
    And even worse is the murder of Mark Jaimes.” The prosecution
    went on to devote a significant amount of its closing argument
    to discussing the murder.
    Finally, the Jaimes confession may have been particularly
    weighty because it erased any lingering doubt the jury may have
    had that Flores committed multiple murders. The evidence in
    14
    PEOPLE v. FLORES
    Liu, J., concurring and dissenting
    support of Flores’s guilt for the murders of Van Kleef and Ayala
    was rather thin. Two witnesses, Andrew Mosqueda and
    Carmen Alvarez, provided much of the testimony implicating
    Flores in the Van Kleef and Ayala murders during the guilt
    phase and much of the testimony that Flores committed past
    offenses during the penalty phase. During the penalty phase,
    Flores impeached both witnesses based on contradictions
    between their guilt and penalty phase statements. To the
    extent that these contradictions sowed doubt in the jury about
    its multiple-murder finding, the Jaimes confession made clear
    that Flores committed multiple murders, which qualified him
    for the death penalty. In sum, the erroneous admission of
    Flores’s confession was not harmless beyond a reasonable doubt.
    I join the portions of today’s opinion affirming Flores’s
    convictions, but for the reasons above, I would vacate the
    judgment of death.
    LIU, J.
    I Concur:
    CUÉLLAR, J.
    15
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion People v. Flores
    __________________________________________________________________________________
    Unpublished Opinion
    Original Appeal XXX
    Original Proceeding
    Review Granted
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S116307
    Date Filed: May 4, 2020
    __________________________________________________________________________________
    Court: Superior
    County: San Bernardino
    Judge: Ingrid Adamson Uhler
    __________________________________________________________________________________
    Counsel:
    Robert H. Derham, under appointment by the Supreme Court, for Defendant and Appellant.
    Kamala Harris and Xavier Becerra, Attorneys General, Ronald S. Matthias, Julie L. Garland and Dane R.
    Gillette, Assistant Attorneys General, Holly D. Wilkens, Heather F. Crawford, Ronald A. Jakob and
    Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    Robert H. Derham
    Attorney at Law
    369-B Third St., #364
    San Rafael, CA 94901
    (415) 485-2945
    Heather Clark
    Deputy Attorney General
    600 West Broadway, Suite 1800
    San Diego, CA 92101
    (619) 738-9033