PEOPLE v. VERDUGO

At a sidebar conference, defense counsel stated that the prosecution had not met its disclosure obligations with respect to Tucker's statements. That morning, the prosecutor had given defense counsel notes of an interview conducted with Tucker about a week earlier. The notes included the phrase "louvers on windows." The trial court found the discovery violation "trivial," although "unprofessional." It denied defendant's motion for a mistrial, but invited defense counsel to file a motion for a continuance. It further observed that it would allow Tucker to be re-called for further cross-examination regarding the louvers if defendant's investigation uncovered additional evidence.

Defendant concedes the evidence was not favorable to the defense. Therefore, he cannot establish a Brady violation. There was, however, a violation of the reciprocal-discovery statute, under which the prosecutor was required to immediately disclose his notes regarding Tucker's statement. (§§ 1054.1, subd. (f), 1054.7.) Nevertheless, no prejudice is apparent. The trial court permitted defendant to move for a continuance and, if necessary, to re-call Tucker for further cross-examination. Defendant does not explain why these remedies were inadequate.

e. Disclosure of Donna Tucker's relocation

After trial, the prosecutor disclosed that his office had assisted Donna Tucker in relocating to a new home, including paying some of Tucker's rent. In a new trial motion, defendant unsuccessfully argued that the prosecutor's posttrial disclosure of this assistance violated Brady. He renews that contention here.

In January 1996, before trial began, Kevin McCormick, the former prosecutor on the case, sought and received an ex parte order for relocation expenses for Donna Tucker not to exceed $1,318. In a declaration in support of the motion, McCormick stated that "Abe Verdugo, the defendant['s] uncle told Ms. [Tucker], prior to the defendant being arrested, that he knew someone was `snitching' and he would take care of it when he found out who it was." The declaration also stated that Abe Verdugo began carrying a handgun shortly after defendant was profiled on a television program for wanted criminals. Tucker testified at the preliminary hearing, which was attended by Abe Verdugo and other members of the Verdugo family. McCormick's declaration further stated: "[D]efendant maintains [an] alliance with a local criminal street gang. Ms. [Tucker] is fearful of the associates of the defendant who know not only her, but also her family and friends." The declaration continued: "Donna [Tucker] has sought to move out of town under an assumed name but has had difficulty due to financial restraints, local job responsibilities and the reluctance of apartment managers to permit relocation under a name other than her own. Ms. [Tucker] remains fearful of being seriously injured by associates of the defendant or his relatives as a result of coming forward with critical information in this case." At the hearing on defendant's new trial motion, McCormick confirmed that Tucker had told him she was fearful that defendant would have her killed if she did not move to a new location.

No Brady error is apparent. Defendant contends the information was favorable to the defense to the extent it could have been used to undermine Tucker's credibility (by demonstrating the benefits she was receiving for her cooperation with the prosecution). Whether the information, as a whole, was favorable to defendant is far from clear. But even assuming some of the information (such as the financial assistance Tucker received), in isolation, could be considered favorable to defendant, there is no "reasonable probability its disclosure would have altered the trial result." ( Zambrano, supra, 41 Cal.4th at p. 1132.) If the defense had attempted to present this evidence at trial in an effort to undermine Tucker's credibility, the prosecution would have been entitled to present evidence explaining the reasons for Tucker's relocation, which were that a member of the Verdugo family had threatened her, that she was fearful that defendant would have her killed unless she moved, and that defendant had ties to a criminal street gang. This rebuttal evidence would have effectively countered the defense assertion that Tucker was benefiting from her cooperation with the prosecution. In fact, Tucker's willingness to testify against defendant despite justifiable concerns about her safety arguably would have enhanced her credibility.

For the same reason, defendant fails to demonstrate prejudice from violation of the reciprocal-discovery statute.

f. Disclosure of Detective Teague's oral statement as to the direction the shooter was facing

(1) Factual background

On cross-examination of Detective Teague at trial, defense counsel asked what direction the assailant was facing when he shot Navarro. Teague replied, "I believe that the shooter was standing near the curb facing the fire station." Counsel then asked if Teague had ever written a report that included that opinion. Teague replied, "I don't believe I ever used those exact terms, no, sir." Nevertheless, Teague believed that he had orally informed the district attorney of his opinion in December 1994.

Later, outside the presence of the jury, defense counsel asserted that before Teague's testimony, "everything that we had before us" indicated "that the shooter was facing away from" the firefighters. He further asserted that the prosecutor's failure to disclose Teague's oral statement violated section 1054.1, and he sought a mistrial based on prosecutorial misconduct. The trial court found no discovery violation, but said that, "assuming there is some violation here," he would allow the defense to re-call Teague for further cross-examination on the issue. The court also observed that the defense would have three to four days, including a weekend, to consult with an expert before the prosecution completed its case-in-chief. The court said: "[I]f there is really a problem here, . . . then I'll let you revisit it."

(2) Analysis

We find no Brady violation. Defendant does not explain how Teague's opinion about the direction the shooter was facing was favorable to the defense. ( Zambrano, supra, 41 Cal.4th at p. 1132.) Moreover, Teague's opinion was disclosed at trial, and hence was not suppressed for Brady purposes. ( Morrison, supra, 34 Cal.4th at p. 715.) Nor was there prejudice from any reciprocal-discovery statute violation. Defendant does not explain why the trial court's remedy of allowing the defense to re-call Teague for further cross-examination was inadequate.

g. Disclosure of notes recording the measurement of Paul Escoto's car

(1) Factual background

The defense contended that Paul Escoto, who had a car similar in certain respects to defendant's car, could have been the shooter.

On June 6, 1997, Detective Teague testified that he believed marks on the street at the murder scene were acceleration marks created by a front-wheel-drive vehicle. Defendant's Honda CRX was a front-wheel-drive vehicle, but Teague could not recall if he had ever examined Escoto's car to determine whether it also was a front-wheel-drive vehicle.

On June 10, 1997, Detective Markel testified that the acceleration marks on the street at the murder scene measured four feet nine inches apart, matching the wheelbase of the front wheels on defendant's car. Detective Teague testified that on June 7 he examined Escoto's car and determined that it was a rear-wheel-drive vehicle with a wheelbase of four feet six inches. At a sidebar conference, the defense argued that the prosecution had failed to disclose Teague's notes recording the measurements of Escoto's car. The prosecutor said that he had received Teague's notes that morning and had left a copy of the notes on defense counsel's table in the courtroom "right when we walked in." Defense counsel was unaware the notes were there.

The court stated that it did not know how the prosecutor could have produced the notes to the defense any sooner than he had, but the court further stated that defendant would be permitted to defer cross-examination of Teague on this issue. Defendant moved for a mistrial, which the trial court denied.

(2) Analysis

No Brady error occurred, because Teague's measurements of Escoto's car were not favorable to the defense and were disclosed at trial. ( Zambrano, supra, 41 Cal.4th at p. 1132; Morrison, supra, 34 Cal.4th at p. 715.)

Nor was there any violation of the reciprocal-discovery statute. The prosecutor produced the notes to the defense the same morning that he received them, which satisfies the statutory requirement of immediate disclosure of materials that become known during trial. (§ 1054.7; see People v. DePriest (2007) 42 Cal.4th 1, 37-38 [ 63 Cal.Rptr.3d 896, 163 P.3d 896] [disclosure of evidence the morning after its discovery was timely under § 1054.7].) Although defendant claims he was "taken by surprise and . . . unable to effectively counter this new evidence," the prosecution had no duty to obtain the evidence sooner than it did. (Cf. In re Littlefield (1993) 5 Cal.4th 122, 135 [ 19 Cal.Rptr.2d 248, 851 P.2d 42].)

h. Disclosure of Detective Walton's opinion

(1) Factual background

On May 30, 1997, Los Angeles Police Detective Charles Walton (who had been involved in the investigation of defendant's case) was sitting on a bench in the hallway outside the courtroom. He was greeted by Defense Attorney George Hernandez, with whom he was acquainted. Hernandez asked Walton about paint transfer on the victim's car and said: "[I]t looks white so it would seem that it came from a white car." Walton replied that counsel's assessment "was possible, but that it could have come from any color car or it could have just been the wax or lacquer transfer from the outer coating, protective coating, of a vehicle or any number of colors which may have changed color due to heat and friction of the vehicles rubbing together during the traffic collision."

On June 2, 1997, the court held a hearing outside the presence of the jury to determine whether any discovery violation had occurred in connection with Walton's opinion about paint transfer. Detective Walton testified to the circumstances of his May 30 encounter with defense counsel recounted above. Walton also testified that as part of the investigation of the case, he had examined and made certain measurements of Rodriguez's burgundy Honda Civic and defendant's Honda CRX. He noticed a "whitish color" mark on Rodriguez's Civic and mentioned it to Detective Markel. Markel said: "Don't worry about any paint transfer. We're not interested in that [because] the other car [was] painted after the . . . alleged accident." Walton testified that he wrote a report summarizing his findings, but the report did not include any conclusions regarding the white mark. Walton also testified that he was "not a paint expert." He agreed with defense counsel that the white mark he saw could have been a paint transfer, but he also agreed with the court that he was not sure. The trial court found no discovery violation, because Walton was not qualified to be a paint expert.

(2) Analysis

Defendant contends that if Detective Walton's opinion regarding the white mark on Rodriguez's Civic had been disclosed in a timely manner, defendant might have been able to locate an expert who would have testified that the mark was white paint from a white car. This testimony would have undermined the prosecution's assertion that there was a collision between defendant's car and the victim's car shortly before the murders. We disagree.

Before Walton's discussion with defense counsel, the only statement Walton made about the white mark (orally or in writing) was his comment to Detective Markel that the mark existed. Defense counsel knew, however, long before his hallway conversation with Walton that the mark existed. In his opening statement, defense counsel mentioned the mark and argued that this mark was evidence that defendant's car, which was black at the time of the murder, was not at the murder scene. Nothing prevented defense counsel from retaining an expert to support this argument.

Walton's later statement to defense counsel that the white mark might have come from a car of any color did not prevent defense counsel from continuing to argue the opposite. Walton was neither an expert regarding paint transfer, nor did he testify before the jury regarding the source of the mark. And, in any case, the prosecution cannot be faulted for failing to disclose Walton's nonexpert opinion about the white mark, because there is no evidence that the prosecution knew Walton's opinion. "`Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him.`" ( Zambrano, supra, 41 Cal.4th at p. 1134.) Accordingly, we conclude there was no Brady or reciprocal-discovery statute violation.

i. Disclosure of expert opinion regarding alleged collision between defendant's and victim's vehicles

In addition to testifying outside the presence of the jury, Detective Walton also testified before the jury as an expert on accident reconstraction. He stated that he had inspected both defendant's Honda CRX and Rodriguez's Honda Civic. As relevant here, he concluded that bodywork had been performed on the CRX.

Defendant moved for a mistrial, contending that the prosecutor failed to disclose Walton's opinion, and therefore his testimony caught the defense by surprise. On the night before Walton's testimony the prosecutor discussed certain photographs of defendant's car — which had years earlier been provided to the defense — with Walton, and the next morning the prosecutor did not disclose Walton's opinion regarding the photographs to the defense. On that limited basis, the trial court found a discovery violation, but it implicitly denied defendant's mistrial motion. Instead, it offered to allow the defense to defer cross-examination of Walton so that the defense could consult an expert.

Defendant states that "Walton's opinions bolstered the prosecution's claim that [defendant's] CRX was probably the vehicle with which the victim's red car collided." (Italics added.) Because defendant concedes that Walton's opinion was not favorable to the defense, there was no violation of Brady. (Zambrano, supra, 41 Cal.4th at p. 1132.) In addition, the evidence was disclosed at trial, and hence was not suppressed for Brady purposes. ( Morrison, supra, 34 Cal.4th at p. 715.)

With regard to the reciprocal-discovery statute, the violation did not prejudice defendant. Defendant makes no attempt to demonstrate, as he must, why the trial court's remedy of deferring cross-examination of Walton was inadequate.

j. Cumulative prejudice

Defendant contends that even if a single failure to disclose evidence does not warrant reversal, the "cumulative prejudice resulting from the prosecution's consistent course of withholding material evidence certainly does." We have concluded that the individual discovery violations were harmless or that any harm could have been fully cured by the remedy the trial court offered. We are troubled by the number of statutory discovery violations that occurred here, but because the harm in each case was nonexistent or could have been fully avoided, we see no possibility of cumulative prejudice.

3. Evidentiary issues

a. Exclusion of evidence regarding allegations that detectives had fabricated evidence in a different case

Defendant contends that the trial court prejudicially erred by excluding evidence that detectives involved in his case had been accused of fabricating evidence in a different case. These detectives were exonerated, but defendant asserts that this evidence would have established the motivation for his own fabrication of evidence. Defendant claims violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 7, 15 through 17, and 28, of the California Constitution. We disagree.

About nine months before trial, the prosecutor informed the trial court and defense counsel that, in a different case, Detectives Teague and Markel had been exonerated of charges that they had fabricated evidence. At trial in this case, defense counsel sought permission to present evidence regarding the investigation of Detectives Teague and Markel. Counsel asserted that this evidence would substantiate defendant's explanation for why he had arranged from jail to have a pair of eyeglasses purchased that matched the eyeglasses he wore to the Halloween party. Defendant claimed that he did so because he believed Detectives Teague and Markel were falsely accusing him, and he wanted to refute their false accusations with false evidence of his own. Defense counsel implied that such a motivation would negate any argument that defendant arranged the purchase of the eyeglasses because of a consciousness of guilt.

The trial court pointed out that, as of that time, the evidence related to the purchase of the eyeglasses demonstrated only that defendant's brother and father had fabricated evidence; no evidence tied defendant to their activity. The court said it would instruct the jury that the evidence regarding the purchase of the eyeglasses could not be considered against defendant and could only be used for purposes of considering the credibility of Salvador and Paul Verdugo. The court excluded the evidence regarding the investigation of Detectives Teague and Markel, finding the probative value of that evidence substantially outweighed by the consumption of time and the distraction of exploring a collateral issue. (Evid. Code, § 352.)

No abuse of discretion appears. ( People v. Farley (2009) 46 Cal.4th 1053, 1129 [ 96 Cal.Rptr.3d 191, 210 P.3d 361] ( Farley).) Even assuming that the evidence of the allegations against Detectives Teague and Markel was relevant, the trial court reasonably excluded it under Evidence Code section 352. This is especially so considering that the detectives had been exonerated of fabricating evidence by the time defendant's trial began and the prosecution would then have been entitled to bring that point to the attention of the jury. The result would have been a lengthy evidentiary detour into a matter that was only marginally relevant and might well have confused the jury.

Defendant later testified that he lied to his attorney about the eyeglasses his brother and father had obtained (claiming they were the same eyeglasses he had worn to the Halloween party) to counter the lies of Donna Tucker and Detective Teague. Defendant said: "I panicked, felt like I was being framed, no one was going to believe me, that I lost the glasses, so I had those purchased." Thus, the jury heard defendant's explanation for why he arranged for the purchase of the glasses; the additional evidence that Detectives Teague and Markel had been accused of, and exonerated of, fabricating evidence in an unrelated case would have done little to substantiate this explanation.

b. Exclusion of evidence of Donna Tucker's need for psychiatric care

Defendant contends the trial court erred when it precluded defendant from presenting evidence that Donna Tucker had received psychiatric care. We disagree.

(1) Factual background

As noted, Donna Tucker, who was married to defendant's brother Michael Verdugo, testified for the prosecution. Between the time of the murders and the time of trial, Tucker and Michael divorced. The defense case included an effort to discredit Tucker. On direct examination, defendant's sister, Mary Alice Baldwin, testified that she had known Tucker since 1973. Defense counsel asked, "Did you ever think that Donna was not mentally stable?" The trial court sustained the prosecutor's relevance objection. Defense counsel then inquired, "Well, from your observations, did you ever see anything about her that you thought was unusual?" The trial court again sustained the prosecutor's relevance objection.

At a sidebar conference, defense counsel asserted that Tucker had been admitted to a psychiatric hospital approximately three months earlier. Counsel said he had learned this information the night before from Michael Verdugo, who said he was "paying the psychiatric bills and hospital bills as part of the divorce settlement." The prosecutor told the court that he had no knowledge regarding these assertions.

The trial court observed that receipt of psychiatric care "does not necessarily reflect on" credibility and that counseling is common for individuals who are going through a divorce. Defense counsel sought permission to question Baldwin as to whether Tucker had had any previous episodes of unusual laughing and crying, noting that Tucker had laughed and cried during her testimony. The court found the evidence would require a collateral inquiry into the circumstances under which Tucker had previously laughed and cried. It also found the evidence irrelevant, because Baldwin was not an expert on mental health and not qualified to give an opinion as to whether the laughing and crying was an expression of normal emotion or a sign of mental illness. The court noted that Tucker's hospital bills "could be some kind of out-patient counseling for the stress of the divorce" and concluded: "[A]s you present it to me right now, it's too vague and general. You're going to have to get specific with a witness that's qualified. That's all I'm telling you."

(2) Analysis

"[T]he mental illness or emotional instability of a witness can be relevant on the issue of credibility . . . if such illness affects the witness's ability to perceive, recall or describe the events in question." ( People v. Gurule (2002) 28 Cal.4th 557, 591-592 [ 123 Cal.Rptr.2d 345, 51 P.3d 224].) Here, however, there was no evidence Baldwin was familiar with any hospitalization or other treatment.

The trial court also acted within its discretion in precluding testimony with regard to whether Tucker had had previous episodes of unusual laughing and crying. This testimony would have required significant collateral inquiry into the circumstances that gave rise in each case to the emotional reaction being described. (Evid. Code, § 352; see Farley, supra, 46 Cal.4th at p. 1129.)

Defendant further contends that he should have been allowed to re-call Tucker as a witness. Although defense counsel made a fleeting reference to bringing Tucker back for further cross-examination, the thrust of the sidebar conference was whether defendant could ask Baldwin questions about Tucker's mental state. Defense counsel did not re-call Tucker, and he points to no place in the record where he requested to do so and was refused permission. The trial court did not abuse its discretion.

4. Alleged instructional error

a. Failure to instruct on voluntary manslaughter as to Richard Rodriguez

There was evidence that the Halloween attack on Michael Arevalo by a female party guest provoked defendant, and that when defendant killed Yolanda Navarro, he erroneously believed he was killing Arevalo's attacker. There was no evidence, however, that a male party guest was involved in the attack on Arevalo. Therefore, with regard to Yolanda Navarro, the trial court instructed the jury on voluntary manslaughter as a lesser included offense to murder, but the court gave no similar instruction with regard to Richard Rodriguez. Defendant claims violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 7 and 15 through 17, of the California Constitution. We find no error.

"`"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request."' [Citation.] `Conversely, even on request, the court "has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction."' [Citation.] This substantial evidence requirement is not satisfied by `" any evidence . . . no matter how weak,"` but rather by evidence from which a jury composed of reasonable persons could conclude `that the lesser offense, but not the greater, was committed.' [Citation.] `On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.' [Citation.]" ( People v. Avila (2009) 46 Cal.4th 680, 704-705 [ 94 Cal.Rptr.3d 699, 208 P.3d 634] ( Avila).)

"`Manslaughter, an unlawful killing without malice, is a lesser included offense of murder.' [Citations.] `Although section 192, subdivision (a), refers to "sudden quarrel or heat of passion," the factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation.' [Citations.] `The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.' [Citation.] `[T]he victim must taunt the defendant or otherwise initiate the provocation.' [Citations.] The `"heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances. . . ."` [Citation.]" ( Avila, supra, 46 Cal.4th at p. 705.)

Here, the jury was instructed on first and second degree murder for both victims, and voluntary manslaughter as to Yolanda Navarro. Defendant requested voluntary manslaughter instructions as to Richard Rodriguez, but the trial court refused, stating: "I can't figure out any way [defendant] could have mistakenly believed that the male victim was responsible for [the assault on Arevalo]." The court continued: "I've pointed out pretty slim evidence even on the female. . . . But there is . . . absolutely nothing to lead me to see any kind of substantial evidence supporting a mistaken belief about the male."

On appeal, defendant contends that the alleged collision between his car and the victim's car provides a sufficient basis for the voluntary manslaughter instruction. Defendant asserts that Rodriguez may have run into defendant, and "the jury readily could have found that the accident by itself, or coupled with [defendant's] anger over the injury to Arevalo, constituted sufficient provocation to reduce murder to voluntary manslaughter." We disagree.

Although there is some evidence that there was a collision, there is no evidence that Rodriguez was responsible for the collision or that defendant killed Rodriguez in a heat of passion due to the collision. (See People v. Holloway (2004) 33 Cal.4th 96, 140 [ 14 Cal.Rptr.3d 212, 91 P.3d 164] [no evidence of consensual sexual encounter on which claim of provocation was predicated]; cf. People v. Barton (1995) 12 Cal.4th 186, 191, 202 [47 Cal.Rptr.2d 569, 906 P.2d 531] [victim nearly collided with, and spat on, the defendant's daughter's car during traffic incident; an argument ensued between the defendant and the victim; voluntary manslaughter instruction was appropriate].)

For the first time in his reply brief in this court, and relying on dictum in a Court of Appeal case, defendant summarily asserts that the assistance Rodriguez was giving to Navarro (who defendant may have believed to be Arevalo's female attacker) supported a voluntary manslaughter instruction. (See People v. Spurlin (1984) 156 Cal.App.3d 119, 126 [ 202 Cal.Rptr. 663] [voluntary manslaughter instruction may be appropriate when "`deceased was present aiding and abetting the person causing the provocation`"].) We have rejected this view: "`The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.' [Citation.]" ( Avila, supra, 46 Cal.4th at p. 705.) Defendant cites no persuasive basis for us to revisit this settled principle.

We further reject defendant's contention that refusing the voluntary manslaughter instruction as to Rodriguez violated defendant's due process rights by requiring the jury to choose between capital murder and a complete acquittal. (See Beck v. Alabama (1980) 447 U.S. 625, 637 [ 65 L.Ed.2d 392, 100 S.Ct. 2382].) Beck was not violated because no evidence warranted a voluntary manslaughter instruction. (See Hopper v. Evans (1982) 456 U.S. 605, 611 [ 72 L.Ed.2d 367, 102 S.Ct. 2049].) Moreover, the jury was instructed on the lesser included offense of second degree murder, which satisfied the due process requirement that an intermediate choice be given to the jury when supported by the evidence. (See Schad v. Arizona (1991) 501 U.S. 624, 646-648 [ 115 L.Ed.2d 555, 111 S.Ct. 2491].)

b. Failure to instruct on voluntary intoxication

Defendant contends the trial court erred in failing to instruct sua sponte on the effect of voluntary intoxication on his ability to form the mental state necessary for murder. Defendant claims that this error violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 7 and 15 through 17, of the California Constitution. We disagree.

It is well settled that "[a]n instruction on the significance of voluntary intoxication is a `pinpoint' instruction that the trial court is not required to give unless requested by the defendant." ( People v. Rundle (2008) 43 Cal.4th 76, 145 [ 74 Cal.Rptr.3d 454, 180 P.3d 224], citing People v. Saille (1991) 54 Cal.3d 1103, 1120 [ 2 Cal.Rptr.2d 364, 820 P.2d 588].) Defendant cites no persuasive reason to revisit this conclusion.

Moreover, even if defendant had requested a voluntary intoxication instruction, the trial court would properly have refused it because "[a] defendant is entitled to such an instruction only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's `actual formation of specific intent.`" ( People v. Williams (1997) 16 Cal.4th 635, 677 [ 66 Cal.Rptr.2d 573, 941 P.2d 752], quoting People v. Horton (1995) 11 Cal.4th 1068, 1119 [ 47 Cal.Rptr.2d 516, 906 P.2d 478].) Indeed, such an instruction would have been inconsistent with the defense of mistaken identity and with defense counsel's statement during closing argument: "[W]hat makes you think he's going to shoot this guy and this girl when he's not drunk, when they haven't even done anything to him?"

c. Circumstantial evidence instructions

Defendant contends that the trial court's use of CALJIC No. 2.01 (which addresses the use of circumstantial evidence to support a finding of guilt) and CALJIC No. 8.83 (which addresses the use of circumstantial evidence to support a special circumstance finding) undermined the requirement of proof beyond a reasonable doubt, thus violating his federal and state constitutional rights to due process of law, to a jury trial, and to a reliable determination of guilt and penalty. He claims the instructions "operated as an impermissible mandatory, conclusive presumption of guilt." We have repeatedly rejected these arguments, and defendant advances no persuasive reason to revisit our conclusion. (See, e.g., Zambrano, supra, 41 Cal.4th at p. 1159.)

B. Penalty Phase Issues

1. Victim impact evidence

Defendant contends the trial court failed to limit the prosecution's victim impact evidence, in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 7 and 15 through 17, of the California Constitution. We disagree.

a. Factual background

Richard Rodriguez's mother, two cousins, aunt, and uncle, and Yolanda Navarro's mother, sister, and brother described the effect of the murders on their lives. At the time of their deaths, both victims were 18 years old and recent high school graduates. Their funerals were well attended. At Yolanda's burial, her brother Jonathan released two doves, which he testified represented Yolanda's and Richard's "spirits going to heaven." The high school that Yolanda and Richard attended built a memorial to them on campus that included two trees surrounded by flowers and a plaque bearing their names. In addition, a memorial service was held in that location.

Richard grew up without a father, but he was close to his uncle Robert and Robert's son. Richard was a straight "A" student in high school and played football. At the time of his death, Richard was attending California State University, Los Angeles, on a scholarship, and he wanted to become an engineer. Due to Richard's influence, his younger cousin Cynthia was successful in school and hoped to go to a major university. At Richard's funeral, Richard's three-year-old godson Nicholas pushed aside the roses from Richard's coffin so he could kiss it.

Yolanda was a responsible, nurturing, and popular person. She was interested in working as a nurse or with children. She had worked with children at a preschool and was scheduled to start work in a hospital on the Monday after her murder. Her brother Jonathan recalled: "[M]y mom had to clean out [Yolanda's] closet, and she had already bought her uniforms for work, and I . . . remember my mom sitting in Yolie's closet crying, holding onto the uniforms."

Yolanda was a best friend to her older sister Ernestine (Tina), and the two sisters were inseparable. They were born on the same day five years apart, and celebrated their birthday together each year. Tina described the events that occurred on the morning of October 23, when the family searched for Yolanda and ultimately learned of her death. She told of the pain she experienced when breaking the news to her mother and making funeral arrangements. Tina also described visiting the crime scene with her father and seeing human remains in the grass.

Yolanda's brother, Jonathan, testified that he had been very close to Yolanda. Jonathan briefly described being outside on the morning of October 23, hearing shots, seeing the bodies of a "boy" and a "girl," and thinking, "Wow, they blew her brains out." He also described his feelings upon learning that the victim was his sister Yolanda: "[W]hy my sister[?] She never hurt anybody in her life." He added: "[S]omeone that I held in my heart and . . . held her hand as a baby, teaching her how to walk, to see her lying on the street like that." Jonathan at times wished he had arrived on the scene sooner and "maybe stopped something, or maybe they could have killed me instead."

Yolanda was very close to her father. On the day of the Halloween party, Yolanda finished recording an approximately 40-minute cassette tape with Mexican songs sung in Spanish. The tape was for her father, and she gave it to him before leaving for the party. Some of the songs were played for the jury. Yolanda's father died seven months after the murder.

Yolanda's mother, Armida, testified that all of the songs on the tape were about "losing someone, leaving someone, [and] having to say goodbye." When Yolanda left for the party, she told Armida, "I love you, Mom." Armida testified: "I never saw her again. I couldn't even see her at the funeral because she had to have a closed casket."

Yolanda was the godmother of Tina's daughter Christine, who was four years old at the time of Yolanda's death. Tina testified that after Yolanda's death, Christine made statements such as "I saw Auntie Yolie in my room last night." Tina also described incidents that she and Christine believed to be signs that "Yolie's spirit is still with us."

The jury also saw photographs depicting events and accomplishments in each victim's life, their funerals and memorial services, the observance of Yolanda's 19th birthday at the cemetery several months after her murder, and the condition of Yolanda's body at the time Jonathan saw her on the morning of October 23, 1994.

b. Analysis

"In a capital trial, evidence showing the direct impact of the defendant's acts on the victims' friends and family is not barred by the Eighth or Fourteenth Amendments to the federal Constitution. ( Payne v. Tennessee (1991) 501 U.S. 808, 825-827 [ 115 L.Ed.2d 720, 111 S.Ct. 2597].) Under California law, victim impact evidence is admissible at the penalty phase under section 190.3, factor (a), as a circumstance of the crime, provided the evidence is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case." ( People v. Pollock (2004) 32 Cal.4th 1153, 1180 [ 13 Cal.Rptr.3d 34, 89 P.3d 353] ( Pollock).) We conclude neither the federal nor the state standard was violated here.

The testimony was similar to other victim impact testimony that we have found admissible in the past. For example, in People v. Dykes (2009) 46 Cal.4th 731, 779-780, 782 [ 95 Cal.Rptr.3d 78, 209 P.3d 1] ( Dykes), we upheld the admission of (1) testimony of a child victim's teacher, describing his popularity in school, (2) testimony of the victim's older sister regarding her feelings of sorrow and unreality while making funeral arrangements and her recollections of intimate interactions she had had with the victim, (3) testimony of the victim's grandmother describing her profound sense of loss and the effect the victim's death had on the victim's younger brother, and (4) a videotape of a family trip to Disneyland.

As in other cases, the witnesses here described the "immediate effects" of the murders, as well as their "residual and lasting impact." ( People v. Brown (2004) 33 Cal.4th 382, 397-398 [ 15 Cal.Rptr.3d 624, 93 P.3d 244].) Their recollections of past events involving Yolanda and Richard "simply served to explain why they continued to be affected by [the] loss and to show the `victim[s'] "uniqueness as . . . individual human being[s]."`" ( Id. at p. 398, quoting Payne v. Tennessee, supra, 501 U.S. at p. 823.) Contrary to defendant's assertion, the circumstance that Yolanda's mother cried during her testimony does not render that testimony inflammatory. Her tears reflected a normal human response to the loss of a child, a response that the jury would reasonably expect a mother to experience.

In addition, the photographs of family events and other aspects of the victims' lives, including the family's postdeath observance of Yolanda's 19th birthday, were "relevant to humanize the victim[s] and provide some sense of the loss suffered by [their] famil[ies] and society." ( Dykes, supra, 46 Cal.4th at p. 785.)

Testimony regarding the cassette tape of Mexican songs that Yolanda gave her father was also properly admitted. The tape was moving because it demonstrated the close bond between Yolanda and her father, because it included songs about the loss of a loved one, and because Yolanda presented it to her father shortly before her death. It thus demonstrated the relationship lost as a result of Yolanda's murder, and the impact her death had on her father. These were circumstances of the crime appropriately considered by the jury. ( Dykes, supra, 46 Cal.4th at pp. 780, 782 [testimony describing the child victim's intention on the day he was murdered to buy a toy for his younger brother with money he had saved from his allowance "plainly concerns the circumstances of the crime"].) Victim impact evidence is emotionally moving by its very nature, but that fact alone does not make it improper.

Nor, contrary to Justice Moreno's concurring opinion, did the trial court err in admitting the tape and in allowing a portion to be played for the jury. (See conc, opn., post, at p. 314.) Playing a "few" songs from the tape simply illustrated the gift Armida had described in her testimony. Had Yolanda instead created a collage of photographs of Mexico for her father, taken by individuals unrelated to the family, the trial court would have likewise acted properly in allowing the jury to view it. Simply because she gave her father music instead does not raise the same concerns that arise in the context of a filmed tribute to the victim, set to music. (See id. at p. 313.) In the latter case, the music may be irrelevant or serve only to evoke an emotional response ( People v. Kelly (2007) 42 Cal.4th 763, 798-799 [ 68 Cal.Rptr.3d 531, 171 P.3d 548]); here, by contrast, the music was itself the relevant piece of evidence, being the thing that Yolanda chose to present to her father as a gift.

Defendant further contends the victim impact evidence was improper because it was not limited to the circumstances known to defendant at the time he committed the crime. As defendant acknowledges, however, this court has rejected this argument in past cases. ( Dykes, supra, 46 Cal.4th at p. 783; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1057 [ 47 Cal.Rptr.3d 467, 140 P.3d 775]; Pollock, supra, 32 Cal.4th at p. 1183.)

Defendant also contends that admission of the victim impact testimony here under section 190.3, factor (a), violated the ex post facto clause of the federal Constitution because, as of the time of the crimes, no case law permitted such evidence as a "circumstance[] of the crime." Defendant is wrong. (See, e.g., People v. Edwards (1991) 54 Cal.3d 787, 833-836 [ 1 Cal.Rptr.2d 696, 819 P.2d 436].)

Finally, defendant contends that the prosecutor's closing argument at the penalty phase exacerbated the prejudicial nature of the victim impact evidence. We have concluded the victim impact evidence was properly admitted, and therefore the prosecutor was entitled to refer to this evidence in his argument.

2. Scope of cross-examination

Defendant contends the trial court erred in permitting the prosecutor to cross-examine defense witness William Wright regarding a prior bad act of defendant, without having a good faith belief that the incident actually occurred. Defendant claims violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 15 and 17, of the California Constitution. We disagree.

a. Factual background

William Wright testified that he and defendant had been friends for about 23 years. He met defendant when defendant was between five and seven years old, and Wright was 17 or 18 years old. As a child, defendant was quiet, very respectful, and industrious. Wright had never seen him bully anyone or known him to be violent.

At sidebar during cross-examination of Wright, the prosecutor informed defense counsel and the court that he intended to ask Wright about an incident in which defendant put a gun to his younger sister Pauline's head and "threatened to blow her brains out." He stated that Donna Tucker had mentioned this incident in her taped interview, which occurred in May 1995. Defense counsel asserted that the tape of the interview was incomprehensible, and the court recessed to listen to the tape.

After the recess, and still outside the presence of the jury, the court inquired what the prosecutor intended to ask Wright about. The prosecutor said he would ask about defendant's desire "to kill one of Pauline's friends because the guy knew too much about him." He would also ask about defendant's alleged attack on Pauline, "throwing [her] up against the wall, cutting the phone lines, and when she ran out from the house, . . . chas[ing] after her and pull[ing] a gun on her." The court allowed the cross-examination, and Wright denied knowledge of the incidents.

Later, on direct examination of defendant's older sister Mary Alice Baldwin, defense counsel asked whether Pauline had ever told her that defendant "threw her against the wall or put a gun to her?" Baldwin replied, "No . . . [t]hey were very close." Defense counsel asked, "As far as you know, [defendant] never was hostile towards Pauline?" Baldwin answered, "No, no."

b. Analysis

"When a defendant places his character at issue during the penalty phase, the prosecution is entitled to respond with character evidence of its own. `The theory for permitting such rebuttal evidence and argument is not that it proves a statutory aggravating factor, but that it undermines defendant's claim that his good character weighs in favor of mercy.' [Citation.] Once the defendant's `general character [is] in issue, the prosecutor [is] entitled to rebut with evidence or argument suggesting a more balanced picture of his personality.' [Citation.] The prosecution need only have a good faith belief that the conduct or incidents about which it inquires actually took place." ( Loker, supra, 44 Cal.4th at p. 709.)

Defendant contends that the prosecutor lacked the necessary "good faith belief to support the questions he posed to Wright about defendant's attack on Pauline and the related threats. Relying on defense counsel's statement to the trial court that the tape of Donna Tucker's interview was unintelligible, defendant asserts that "[n]o evidence was ever introduced showing the incident occurred." We disagree. The trial court listened to the taped interview of Tucker and implicitly found that Tucker's statements provided the "good faith belief necessary to support the prosecutor's questioning of Wright. We also have reviewed the tape and conclude, with one possible exception, that the trial court's implicit finding is supported by substantial evidence. The one exception is that we can discern no reference on the tape to a threat by defendant to "blow [Pauline's] brains out."

Even assuming, however, that the prosecutor should not have been permitted to ask Wright about a threat by defendant to "blow [Pauline's] brains out," no prejudice is evident under any standard. Tucker testified at the guilt phase that, for a year after her marriage to defendant's brother, defendant threatened to kill her and her husband, perhaps by a "shot in the back of the head." Moreover, the jury was instructed: "Do not assume to be true any insinuation suggested by a question asked [of] a witness. A question is not evidence and may be considered only as it helps you to understand the answer." The jury was further instructed that "[s]tatements made by the attorneys during the trial are not evidence." We presume the jury obeyed these instructions. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 684 [ 47 Cal.Rptr.3d 326, 140 P.3d 657] ( Ledesma).)

3. Alleged Griffin error

Defendant contends the prosecutor committed Griffin error when he said during closing argument: "He can't even face you, this defendant, who commits these two brutal, senseless murders." (See Griffin v. California (1965) 380 U.S. 609, 613, 615 [ 14 L.Ed.2d 106, 85 S.Ct. 1229] [it is a U.S. Const., 5th Amend, violation for the prosecution to comment on the defendant's failure to testify].) Defense counsel objected to the prosecutor's argument at the next recess.

Assuming that the prosecution's statement constituted Griffin error, there was no possible prejudice under any standard. When argument resumed after the recess, the prosecutor told the jury: "When I talked about the defendant's testimony in the guilt phase, . . . I was not commenting at all on his not testifying in the penalty phase." Moreover, the court instructed the jury at the close of the penalty phase: "The defendant elected not to testify in the penalty phase of this trial. It is the constitutional right of the defendant to elect to testify in the guilt phase only, or in the penalty phase only, or in both, or in neither. You're instructed not to consider or discuss the fact that the defendant elected not to testify in the penalty phase. That is a matter that must not in any way affect your verdict as to the penalty." We presume it heeded these instructions. (See, e.g., Ledesma, supra, 39 Cal.4th at p. 684.)

4. Timing of defense closing argument

Defendant contends the trial court erred under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution, and article 1, sections 7 and 15 through 17, of the California Constitution, when it postponed defense counsel's closing argument until the morning after the prosecutor's argument. We disagree.

Toward the end of the prosecutor's closing argument, the trial court inquired how much longer the prosecutor was going to be, and the prosecutor answered, "another 10 minutes." The court then asked defense counsel how long his argument would be. Counsel replied that he did not know, adding, "I thought 40, 50 minutes, but it looks like it may go longer." The court then asked the jury how it would feel about a 15-minute recess, followed by 10 more minutes of prosecution argument and 45 minutes of defense argument. Defense counsel interrupted, saying, "Maybe longer, your honor," and the court said to the jury: "I'm sorry. Maybe longer. Say an hour. Do you want to quit for the day after [the prosecutor], or do you want to go late?"

Juror No. 5 responded, "We'd like a break right now." The court suggested the jury take a break, discuss scheduling, and then let the court clerk know whether or not it wished to go late. The record does not indicate which, if any, preference the jury communicated to the clerk. After the recess, however, the court stated: "Bring out the jurors. We'll finish with your argument then and do the defense argument [at] 8:45 in the morning." The jury entered the room, the prosecutor finished his argument, the jury was excused, and the court made a brief statement to counsel before adjourning for the day.

The next morning, after the court conferred with counsel outside the presence of the jury, defense counsel gave his closing argument. At no time did defendant object to the scheduling of the closing argument.

Defendant's claim of error was forfeited. ( Farley, supra, 46 Cal.4th at p. 1130.) Defense counsel gave no indication to the court that he wanted to proceed immediately after the prosecution's argument finished. Rather, the court and counsel deferred to the jury's apparent preference to start the defense closing argument the next day. Defendant asserts that "[c]ounsel should have been given the opportunity to argue at least briefly" and stress "to the jury the importance of keeping an open mind" overnight, but nothing in the record indicates that counsel sought such an opportunity.

Even assuming the claim was not forfeited, scheduling the defense closing argument for the following morning falls within the court's "great latitude in controlling . . . summations." ( Herring v. New York (1975) 422 U.S. 853, 862 [ 45 L.Ed.2d 593, 95 S.Ct. 2550].)

5. Alleged instructional error

Defendant contends that the trial court erred under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 7 and 15 through 17, of the California Constitution, when it failed to inform the jury that a verdict of life imprisonment without the possibility of parole "means exactly what that means."

The court instructed the jury: "It is the law of this state that the penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison for life without the possib[ility] of parole in any case in which the special circumstances alleged in this case [have] been specially found to be true." (Italics added.) The jury was also instructed: "It's now your duty to determine which of these two penalties, death or confinement in the state prison for life without possibility of parole, shall be imposed upon the defendant." (Italics added.) During deliberations, the jury sent the court a note asking, "In the event the defendant is given life in prison without the possibility of parole, is he still given a parole hearing and a chance of being released?" Over defendant's objection, the court responded, "You were instructed on the applicable law and should not consider or speculate about matters of law on which you were not instructed in arriving at a verdict of death or life in prison without the possibility of parole."

The court's response was proper. "[W]e have consistently held that the phrase `life without possibility of parole' as it appears in CALJIC No. 8.84 adequately informs the jury that a defendant sentenced to life imprisonment without possibility of parole is ineligible for parole." ( People v. Wallace (2008) 44 Cal.4th 1032, 1091 [ 81 Cal.Rptr.3d 651, 189 P.3d 911] ( Wallace).) Nothing in Simmons v. South Carolina (1994) 512 U.S. 154 [ 129 L.Ed.2d 133, 114 S.Ct. 2187] causes us to reconsider that conclusion. (See Wallace, at p. 1091.) Moreover, as we have previously explained, any instruction that a sentence of life imprisonment without the possibility of parole "guaranteed defendant's incarceration until his death would be inaccurate, considering the Governor's commutation and pardon powers." ( People v. Boyer, supra, 38 Cal.4th at p. 487.)

Defendant further contends that the trial court erred by failing to instruct the jury that defendant's age (22 at the time of the crimes) could only be considered in mitigation. We have repeatedly rejected similar contentions. (See e.g., People v. Hawthorne (1992) 4 Cal.4th 43, 77-79 [ 14 Cal.Rptr.2d 133, 841 P.2d 118]; People v. Lucky, supra, 45 Cal.3d at p. 302.) Nothing in Roper v. Simmons (2005) 543 U.S. 551, 555-556, 570-571 [ 161 L.Ed.2d 1, 125 S.Ct. 1183], which prohibits the imposition of the death penalty for crimes committed by persons under the age of 18, changes our conclusions in this regard. (Cf. Hawthorne, at pp. 77-78 [rejecting a similar argument based on Thompson v. Oklahoma (1988) 487 U.S. 815 [ 101 L.Ed.2d 702, 108 S.Ct. 2687] (plur. opn.), which prohibited the imposition of the death penalty for crimes committed by persons under the age of 16].)

6. Challenges to California's death penalty scheme

Defendant contends that sections 190.2 and 190.3 violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution in numerous respects. We have repeatedly rejected similar claims.

"[T]he California death penalty statute is not impermissibly broad, whether considered on its face or as interpreted by this court." ( Dykes, supra, 46 Cal.4th at p. 813.) In particular, the multiple-murder special circumstance adequately narrows the class of murderers subject to the death penalty. ( People v. Box (2000) 23 Cal.4th 1153, 1217 [ 99 Cal.Rptr.2d 69, 5 P.3d 130].) Likewise, "we reject the claim that section 190.3, factor (a), on its face or as interpreted and applied, permits arbitrary and capricious imposition of a sentence of death. . . ." ( Dykes, at p. 813; see Tuilaepa v. California (1994) 512 U.S. 967, 975-976, 978-979 [ 129 L.Ed.2d 750, 114 S.Ct. 2630].)

The federal Constitution is not violated by section 190.3's failure (1) to designate factors as either mitigating or aggravating; (2) to require written findings or unanimity on the existence of aggravating factors; or (3) to require findings beyond a reasonable doubt that an aggravating circumstance (other than factor (b) and factor (c) evidence) has been proved, that the aggravating factors outweighed the mitigating factors, or that death is the appropriate sentence. ( Dykes, supra, 46 Cal.4th at pp. 813-814; Avila, supra, 46 Cal.4th at p. 724.) Nothing in Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856, 127 S.Ct. 856], Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556, 122 S.Ct. 2428], or Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435, 120 S.Ct. 2348] affects our conclusions in this regard. ( People v. Valencia (2008) 43 Cal.4th 268, 311 [ 74 Cal.Rptr.3d 605. 180 P.3d 351] ( Valencia); Avila, at p. 724.)

The trial court "need not instruct that the jury can consider certain statutory factors only in mitigation." ( Valencia, supra, 43 Cal.4th at p. 311.)

Use of the adjective "extreme" in section 190.3, factor (d), and the adjective "impaired" in section 190.3, factor (h), is constitutional. ( People v. Hawthorne (2009) 46 Cal.4th 67, 104 [ 92 Cal.Rptr.3d 330, 205 P.3d 245].)

"A prosecutor's discretion to select those eligible cases in which the death penalty is sought does not offend the federal or state Constitution." ( Wallace, supra, 44 Cal.4th at p. 1098.)

The failure of California's death penalty law to require intercase proportionality does not violate the federal Constitution. ( Pulley v. Harris (1984) 465 U.S. 37, 50-51 [ 79 L.Ed.2d 29, 104 S.Ct. 871]; People v. Cox (2003) 30 Cal.4th 916, 970 [ 135 Cal.Rptr.2d 272, 70 P.3d 277].) "Nor does the circumstance that intercase proportionality review is conducted in noncapital cases cause the death penalty statute to violate defendant's right to equal protection and due process." ( Farley, supra, 46 Cal.4th at p. 1134.) "[C]apital and noncapital defendants are not similarly situated and therefore may be treated differently without violating constitutional guarantees of equal protection of the laws or due process of law. . . ." ( People v. Manriquez (2005) 37 Cal.4th 547, 590 [ 36 Cal.Rptr.3d 340, 123 P.3d 614].)

C. Posttrial Issues

1. Denial of new trial motion

Defendant contends the trial court erred under state law in denying his motion for new trial (§ 1181) and that the error violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 7 and 15 through 17, of the California Constitution. We disagree.

a. Factual background

The jury returned its penalty verdict on July 14, 1997. Defendant advised the court he might be filing a motion for new trial, which after an extension of time was due on October 31, 1997. In case defendant filed a new trial motion, a hearing was set for November 14, 1997. Defendant did not file a new trial motion. Instead, on November 13, 1997, he filed a motion to continue the hearing date. In a supporting declaration, defense counsel stated that, on or about October 10, 1997, he had learned of letters Donna Tucker had written to defendant's sister Pauline Verdugo that possibly impeached Tucker's credibility. Defendant ultimately filed a new trial motion on August 13, 1998, and on March 12, 1999, he filed a "summary of grounds" for the motion. He filed a second "summary of grounds" on June 3, 1999.

The letters Tucker had written to Pauline Verdugo formed the basis for several of defendant's arguments. Among other things, defendant contended that Tucker was biased in her testimony against him because the letters revealed that she was planning to or was having a romantic relationship with Detective Markel, and also because she had been promised reward money. The court held an extensive evidentiary hearing.

At the hearing, Tucker confirmed that the letters were written in her handwriting. She testified that, although she admired Detective Markel and would have liked a romantic relationship with him, "there was never anything going on between [them]." She said she lied in her letters to Pauline about Markel watching her because she wanted the Verdugo family to think she had police protection. Tucker also said that she did not lie in court to attract Markel. Markel testified that his relationship with Tucker had been merely professional. He said that he became aware that Tucker was interested in him romantically only after he learned of her letters to Pauline. Kevin McCormick, the former prosecutor on defendant's case, testified that he had never witnessed any inappropriate behavior between Tucker and Detective Markel, and Tucker had never told him that she was infatuated with Markel. Detective Teague testified that he knew of no occasion on which Markel and Tucker met alone.

Tucker further testified that she had falsely told Pauline that she was promised reward money, hoping to convince Pauline that Tucker would take care of her. Tucker considered Pauline to be like a daughter. She thought she was entitled to the reward money, but it was not her decision who received it. Although she wanted to take care of Pauline, she also observed that "it would turn [her] stomach [to receive the reward money] because someone I loved murdered those two kids, and to profit from someone else's tragedy, I couldn't do." She testified that she had not received any reward in this case.

Detectives Ewing Kwock and Jerry Stephens testified that no claims had been made on the reward money. Markel testified that he recalled at some point telling Tucker that there was a reward, but he never promised her the reward money. He described this conversation as being brief: "[Tucker] told me that she was not the least bit interested in it and that was the end of the talk of the reward." Markel testified that he would not entice a witness with reward money. Likewise, Detective Teague testified that he had never promised any reward money to anyone in this case. Trial Prosecutor Michael Duarte testified that the only discussions he had regarding whether Tucker was promised reward money occurred after trial, when the defense raised the issue.

In addition, Pauline Verdugo testified regarding the circumstances under which she had disclosed the letters, and Detectives Kwock and Stephens testified regarding investigative interviews they conducted with Tucker and Markel after the revelation of the letters. Tucker told Kwock that she had a "crush" on Detective Markel, but that it was only wishful thinking. Defendant's sister Mary Alice Baldwin testified regarding Pauline's contact with other members of the Verdugo family before and during the trial, and about her own contact with Defense Counsel George Hernandez. Baldwin also testified that Tucker told her before trial that she was "falling for Detective Markel." Baldwin told Defense Counsel Hernandez before trial that Tucker had said that Markel had offered her the reward and that she intended to accept it.

The trial court denied the new trial motion. The court found credible Tucker's and the "officer's" testimony at the hearing on the motion. Given what the trial evidence had revealed about the Verdugo family, the court said that Tucker's explanations made "a lot of sense." With respect to the reward money, the court credited Tucker's hearing testimony that she was not promised any reward, and the court noted that other testimony corroborated Tucker's testimony. The court also credited Tucker's explanation of her contradictory assertion to Pauline that she had been promised the reward. Finally, the court stated that, "even taking Donna [Tucker] out of the case," the verdicts in both phases of the trial would have been the same.

b. Analysis

"To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial." ( People v. Ochoa (1998) 19 Cal.4th 353, 473 [ 79 Cal.Rptr.2d 408, 966 P.2d 442].) "[T]he trial court has broad discretion in ruling on a new trial motion . . .," and its "ruling will be disturbed only for clear abuse of that discretion." ( People v. Ault (2004) 33 Cal.4th 1250, 1260 [ 17 Cal.Rptr.3d 302, 95 P.3d 523].) In addition, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence." ( People v. Nesler (1997) 16 Cal.4th 561, 582 [ 66 Cal.Rptr.2d 454, 941 P.2d 87] (lead opn. of George, C. J.).)

Several of the grounds defendant raises on appeal in challenging the trial court's denial of his new trial motion have already been discussed in detail in this opinion and rejected. Specifically, he asserts that he was entitled to a new trial because (1) the prosecution had failed to disclose Tucker's receipt of witness relocation funds, a fact that the defense could have used to impeach her; (2) the trial court had excluded evidence related to Tucker's mental health problems; and (3) the trial court had precluded defendant from using the investigation of wrongdoing by Detectives Teague and Markel to substantiate his explanation for why he had arranged for the purchase of eyeglasses that could be used as false evidence. For the reasons already stated (see, ante, pts. II.A.2.e., II.A.3.a., II.A.3.b.), we find these arguments unpersuasive. ( People v. Burgener (2003) 29 Cal.4th 833, 893 [ 129 Cal.Rptr.2d 747, 62 P.3d 1].)

The trial court also did not err in concluding that the letters Donna Tucker wrote to Pauline Verdugo did not provide a basis for granting a new trial. Although certain statements in Tucker's letters are troubling, the court found her explanations of those statements to be credible, and substantial evidence in the form of her testimony and that of other witnesses supports this credibility determination.

To the extent defendant claims that the letters represented newly discovered evidence that Tucker had been in a psychiatric institution and that the new trial motion should have been granted on that ground, he forfeited the claim by failing to assert it below, either in his motion for a new trial or in his two statements of grounds for the motion. In addition, the letters were not newly discovered evidence of Tucker's hospitalization, because defendant was aware during trial of the possibility that Tucker had been hospitalized in a psychiatric institution, and could have investigated the matter at that time. (§ 1181.) Finally, defendant does not identify what Tucker's psychiatric problems were or how they would have affected her credibility.

"Defendant has shown no manifest and unmistakable abuse of discretion in the trial court's ruling [on the new trial motion]. No basis for reversal appears." ( Zambrano, supra, 41 Cal.4th at p. 1188.)

2. Denial of request to discharge retained counsel

Defendant contends the trial court erred under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and analogous provisions of the California Constitution when, in the middle of the evidentiary hearing on the new trial motion, the court denied defendant's request to discharge retained counsel. We disagree.

a. Factual background

As noted above, the penalty verdict was rendered on July 14, 1997, and on August 13, 1998, more than a year later, defendant filed a new trial motion. On September 11, 1998, five witnesses, including Donna Tucker, testified at the hearing on the new trial motion. The hearing was continued to September 25, 1998, at which time Defense Counsel George Hernandez did not appear, apparently because of a miscommunication regarding the time of the hearing. The hearing was then continued to October 23, 1998. Hernandez again failed to appear, this time because he was ill, and the hearing was continued to November 20, 1998.

At the outset of proceedings on November 20, 1998, Hernandez stated that defendant "would like to relieve me as counsel." The court denied the motion as untimely, observing that they were in the middle of a hearing in which considerable evidence had already been introduced, the trial involved a lengthy transcript, and replacing counsel would cause substantial delay.

Defendant attempted to bolster his request to discharge counsel by stating that Hernandez did not visit or telephone him with sufficient frequency. Hernandez also stated that he had a conflict of interest because of a "veiled threat" that defendant's father, Salvador Verdugo, had made against him at the time of the September 11, 1998 hearing. Salvador Verdugo allegedly told Hernandez: "[I]f anything happens to my son . . . we'll see what happens to you," or words to that effect. Hernandez did not report the incident to the police, but he had no further contact with Salvador until three or four days before the November 20 hearing, when he spoke to Salvador on the telephone. In that conversation, Salvador said he was angry and "don't forget."

The trial court commented that the alleged threat against Hernandez did not appear "serious and credible" and that Hernandez's representations sounded like "another . . . last ditch effort to somehow derail these proceedings." Out of concern, however, that the circumstances might warrant counsel's removal, the court continued the hearing so that Salvador Verdugo could be questioned, and it also requested briefing on the applicable legal standards.

On December 4, 1998, Salvador Verdugo testified that after a recent court session, he followed Hernandez into the parking lot to ask about the case, feeling dissatisfied by Hernandez's lack of communication with him. When his attempt to obtain more information was unsuccessful, Salvador told Hernandez: "[I]f my son goes down, . . . because . . . you're not doing your job, . . . you're going to go down, too. I'm going to go before the board and see that you go down." By "board," Salvador meant the State Bar. Salvador, who was on probation and who considered Hernandez to be a friend, said that he never threatened Hernandez with physical violence.

The court denied the motion to relieve counsel. The court determined that no threat had actually been made and that Hernandez had simply misunderstood the situation. As to the other grounds raised in support of the motion, the court relied on the circumstances that there had been a lengthy trial, the new trial motion had been continued numerous times, and "to relieve Mr. Hernandez . . . at this time would . . . severely disrupt the orderly processes of justice." The court observed that the events pertinent to the new trial motion were "still somewhat fresh in the witness[es]' memory" and that examination of Donna Tucker had already begun.

b. Analysis

The right to retained counsel of choice is — subject to certain limitations — guaranteed under the Sixth Amendment to the federal Constitution. ( United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144, 151-152 [ 165 L.Ed.2d 409, 126 S.Ct. 2557]; People v. Ramirez (2006) 39 Cal.4th 398, 422 [ 46 Cal.Rptr.3d 677, 139 P.3d 64].) In California, this right "reflects not only a defendant's choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain." ( People v. Ortiz (1990) 51 Cal.3d 975, 983 [ 275 Cal.Rptr. 191, 800 P.2d 547] ( Ortiz); see Code Civ. Proc., § 284.) The right to discharge a retained attorney is, however, not absolute. ( Ortiz, at p. 983.) The trial court has discretion to "deny such a motion if discharge will result in `significant prejudice' to the defendant [citation], or if it is not timely, i.e., if it will result in `disruption of the orderly processes of justice' [citations]." ( Ibid.; see United States v. Gonzalez-Lopez, at p. 152 [a trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness" and "against the demands of its calendar"].)

Defendant contends that the denial of his motion "forced him to proceed with an attorney he did not want and with whom he had a conflict of interest." Defendant, however, does not identify any specific conflict of interest between him and Hernandez, and he denies that the asserted threat against Hernandez was the basis of his motion to relieve counsel. In the absence of any identified conflict of interest, defendant's argument fails.

Defendant further asserts that the trial court erred because there was no evidence that relieving counsel would have resulted in unreasonable disruption. He points out that the request to relieve counsel was made on November 20, 1998, the new trial motion was not ruled on until June 18, 1999, and sentencing did not occur until November 19, 1999, and therefore new counsel would have had enough time to become familiar with the case.

We conclude the trial court acted well within its discretion in denying defendant's motion to relieve counsel. At the time the motion was made, the parties were embroiled in a hearing on the new trial motion that focused on the credibility of a major prosecution trial witness. Numerous witnesses had already testified, and well over a year had passed since the penalty verdict. New counsel would have had to become familiar with the specific matters at issue in the new trial motion, but to understand the significance of those matters, new counsel would also have had to study the entire lengthy trial record, resulting in significant delays. Meanwhile, the witnesses' memories of events pertinent to the new trial motion would naturally have faded over time, an event that the trial court stated would undermine its ability to judge the witnesses' credibility. The trial court reasonably found these circumstances to constitute "`disruption of the orderly processes of justice,`" justifying denial of the motion to relieve counsel. ( Ortiz, supra, 51 Cal.3d at p. 983.)

3. Cumulative prejudice

Defendant contends that the cumulative effect of guilt and penalty phase errors requires us to reverse the judgment. Where we have found or assumed error, we have concluded that there was no prejudice under any standard. We also find no cumulative prejudice.

4. Alleged violation of international law

Defendant contends that the violations of state and federal law in his case also violate international law. We disagree. We have found no violations of state or federal law that preclude imposition of death in this case. "International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements." ( People v. Hillhouse (2002) 27 Cal.4th 469, 511 [ 117 Cal.Rptr.2d 45, 40 P.3d 754].)

We affirm the judgment.

George, C. J., Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.