People v. Johnsen ( 2021 )


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  •         IN THE SUPREME COURT OF
    CALIFORNIA
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    BRIAN DAVID JOHNSEN,
    Defendant and Appellant.
    S040704
    Stanislaus County Superior Court
    R239682
    February 1, 2021
    Justice Liu authored the opinion of the Court, in which Chief
    Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
    Kruger, Groban and Ikola* concurred.
    *
    Associate Justice of the Court of Appeal, Fourth Appellate
    District, Division Three, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    PEOPLE v. JOHNSEN
    S040704
    Opinion of the Court by Liu, J.
    A jury convicted defendant Brian David Johnsen of first
    degree murder (Pen. Code, § 187; all undesignated statutory
    references are to the Penal Code), attempted murder (§ 664),
    two counts of robbery (§ 212.5), three counts of burglary (§ 459),
    and five counts of solicitation to commit murder (§ 653f). The
    jury found true the special circumstances that Johnsen
    murdered Juanita Bragg during a robbery and a burglary.
    (§ 190.2, subd. (a)(17)(A), (G).) The jury also found true that the
    murder was perpetrated by personal use of a deadly weapon
    (§ 12022, subd. (b)) and that the attempted murder count was
    committed with personal use of a deadly weapon and resulted in
    great bodily injury (§§ 12022, subd. (b), 12022.7). At the close of
    the penalty phase, the jury returned a verdict of death. Johnsen
    moved for a new trial and to modify his sentence to life without
    the possibility of parole. (§ 190.4, subd. (e).) The trial court
    denied these motions and sentenced Johnsen to death.
    Johnsen’s appeal is automatic. (§ 1239, subd. (b).) We affirm
    the judgment.
    I. FACTS AND BACKGROUND
    A. Guilt Phase
    1. Prosecution Case
    Sylvia Rudy lived alone in a residential complex owned by
    her employer. Johnsen and his mother lived in the duplex just
    behind Rudy’s home. There were openings on each side of the
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    Opinion of the Court by Liu, J.
    fenced patio area of Johnsen’s home, which allowed for
    unimpeded access to Rudy’s home.
    (a) September 3, 1991
    Rudy went to work in the morning. During lunchtime,
    Rudy returned home to cash a check for her adult daughter,
    leaving the cash on Rudy’s dining room table before returning to
    work. Around 3:00 p.m., Rudy’s daughter arrived at Rudy’s
    home to discover the front door wide open and the cash on the
    table missing. When Rudy came home, she found a large hole
    in the glass window of her back bedroom. Her VCR and her
    jewelry, which Rudy kept in her bedroom dresser, were missing.
    (b) February 15, 1992
    Around 10:00 a.m. on February 15, Johnsen called his
    friend, Mickey Landrum, to ask him to come to Johnsen’s house
    and help move a television set. Landrum arrived around 2:30
    p.m., at which point Johnsen drew Landrum’s attention to the
    television located inside Rudy’s home. Landrum refused to help
    steal Rudy’s television. Johnsen then showed Landrum various
    items he had taken from Rudy’s home, including a microwave,
    boom box, portable bar, china plates, and jewelry. Johnsen
    informed Landrum he had broken into Rudy’s home before.
    Either at that time or a few days later, Johnsen also showed
    Landrum 10 keys attached to a key ring he had taken from
    Rudy’s home, one of which Johnsen surmised was Rudy’s home
    key.
    When Rudy returned home for the day, she noticed that
    her microwave and china plates were missing. She also noticed
    that the window in her back bedroom was broken. Rudy later
    realized that her liquor, boom box, and answering machine were
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    Opinion of the Court by Liu, J.
    missing. Her portable bar, camera, spare car keys, and spare
    front door key were also missing.
    Rudy attempted to call 911 from her kitchen telephone,
    but the phone’s internal components had been disassembled.
    She then tried to call 911 from the combination clock-radio-
    telephone in her bedroom, but it was missing.
    (c) February 18–19, 1992
    On February 18, Landrum spent the night at Johnsen’s
    house, where he and Johnsen drank, smoked pot, and snorted
    “crank” (i.e., crystal methamphetamine) together. On the
    morning of February 19, a Modesto Police Department detective
    arrived at Johnsen’s home and took Johnsen in for questioning
    for an unrelated matter. At Johnsen’s insistence, the detective
    allowed Landrum to stay at the residence.
    Shortly thereafter, Landrum received a call from Johnsen,
    who had been taken to the Modesto jail. Johnsen asked
    Landrum to hide all the items he had taken from Rudy because
    he was worried that the police would soon get a search warrant
    and find Rudy’s stolen property. Landrum acceded to Johnsen’s
    request and placed all the stolen goods into a truck. Landrum
    then drove the items to a friend’s house. Landrum’s friend
    refused to take possession of the items for safekeeping.
    Landrum then phoned Johnsen’s mother. He informed
    her that Johnsen had left with a detective and that he had taken
    the items from Johnsen’s home at his request. Landrum and
    Johnsen’s mother met up for dinner at a pool hall near Johnsen’s
    home. Afterward, they drove separately to Landrum’s friend’s
    house so they could transfer the items into Johnsen’s mother’s
    car.
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    Over the next few days, Johnsen’s mother kept the items
    in the trunk of her car. She then asked her father, Johnsen’s
    grandfather, to keep several of the items in his garage, including
    the microwave, portable bar, china plates, boom box, and
    possibly an answering machine. At some point, Johnsen’s
    grandparents told her that they no longer had space, so
    Johnsen’s mother moved the items to her aunt and uncle’s home.
    At trial, Johnsen’s mother testified that she did not know
    that the items were stolen at the time. Despite her lack of
    awareness, she was suspicious about the origin of the items
    because Johnsen had told her, “As far as you know, I got it either
    at a garage sale or it was given to me.”
    (d) February 28 – March 1, 1992
    On the morning of Friday, February 28, Rudy went to
    work. After work, she left Modesto for a weekend trip to Pebble
    Beach with friends without first returning home. Some time
    that weekend, Juanita Bragg and Leo Bragg, Sr., came to stay
    at their daughter Rudy’s home (to avoid confusion, Leo, Sr., will
    be referred to in this opinion as Leo, and his son, discussed post,
    will be referred to as Leo, Jr). The Braggs lived in Las Vegas,
    but they came to Modesto every year to visit Rudy. So they could
    get into her home, Rudy left a spare key for them in a furnace
    just outside her home. The Braggs arrived at Rudy’s home some
    time before 7:00 p.m. on Saturday, when they spoke with Rudy’s
    daughter over the phone.
    On Saturday, February 29, Landrum spent some of the
    evening at Johnsen’s home, where he helped Johnsen and his
    mother prepare to move out of their home. Johnsen and
    Landrum also drank, smoked pot, and used methamphetamine
    together. Between 9:00 to 10:30 p.m., Landrum drove to his
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    mother’s home in the same city, where he spent the remainder
    of the night. The next morning, around 8:30 a.m., Johnsen and
    his mother began moving out of their apartment. Johnsen was
    moving into a Modesto apartment with Landrum while
    Johnsen’s mother was moving to San Jose. Landrum arrived at
    Johnsen’s home around 10:00 a.m. to help them move.
    Later that day, around 3:00 p.m., Rudy returned home.
    She spotted her parents’ car parked in her carport. After
    parking her own car, Rudy unlocked the front door’s deadbolt
    lock and entered her home. She immediately noticed that the
    house was quiet and the curtains were closed.
    Rudy looked into the guest bedroom and saw her parents
    lying in bed. At first, Rudy assumed they were napping. When
    she entered the room, she heard Leo moaning. As Rudy
    approached him, he reacted fearfully, and she saw that the left
    side of his head appeared to be bashed in. Rudy then checked
    on Juanita. There was blood on Juanita’s hair, and her body felt
    cold and damp. Rudy attempted to call 911, but the bedroom
    phone was missing and the line to the kitchen phone had been
    severed. Rudy was eventually able to call the police from a
    neighbor’s home.
    By the time the police and paramedics arrived, Juanita
    was dead. Dr. William Ernoehazy, a pathologist, arrived around
    6:00 p.m. to analyze her body, which he found lying facedown on
    one side of the bed. He determined that Juanita had suffered
    over 15 blunt force injuries to her head, resulting in several skull
    fractures penetrating into her brain. He also identified six stab
    wounds on her neck and abdomen, and one that penetrated her
    airway. There were cuts on her wrist, hands, and fingers.
    Considering Juanita’s injuries, Dr. Ernoehazy concluded she
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    died from blood loss from the injuries on the front, top, and back
    of her head caused by a ball peen hammer. Based on her body’s
    lividity and the rigidity in her neck, upper extremities, and
    knees, Dr. Ernoehazy estimated that Juanita died between
    10:00 a.m. and noon and estimated that she was attacked two to
    three hours earlier.
    The police found Leo alive but badly injured. He was
    treated at a nearby hospital emergency room. A neurosurgeon
    treated the injuries to Leo’s neck, head, and abdomen.
    Physicians removed skull fragments and a clot from Leo’s brain,
    and sutured Leo’s lacerated inferior mesenteric vein and two
    holes in Leo’s large intestine and colon. According to his
    treating physicians, Leo would have died without this lifesaving
    surgery.
    Detective Jon Buehler found no signs of forced entry into
    Rudy’s home. All the windows and sliding glass doors remained
    closed, still secured with dowels. Detective Buehler concluded
    the only other entryway into Rudy’s home was her front door,
    though there was no indication the door had been opened other
    than through ordinary use of a key. A locksmith confirmed that
    neither the door’s deadbolt lock nor knob lock had been picked.
    Inside Rudy’s home, Detective Buehler discovered a pair
    of pantyhose consistent with the brand she wore, but irregularly
    located on her living room armchair. Forensic analysis found
    inside the pantyhose a four-inch clipped blond hair originating
    from a Caucasian individual. Through a polymerase chain
    reaction (PCR) test, it was also determined that the hair had a
    DQ-Alpha type of 2,4, common among 9 percent of the
    population. The lab testing destroyed the hair, so the hair itself
    was not introduced as an exhibit at trial. Detective Buehler also
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    found a bloody knife in a knife block in Rudy’s kitchen. DNA
    analysis concluded that the blood on the knife had a DQ-Alpha
    type of 1.3,2, the same type as Juanita’s and common among 3
    percent of the population.
    In the evening of March 1, Johnsen brought a paper bag
    with two phones and a calculator to the apartment of Linda Lee,
    his new neighbor. Lee was with a friend at the time. Johnsen
    was shaking and appeared scared and nervous. He asked Lee
    to “get rid of [the bag] where no one would ever see it again.”
    After Johnsen left, Lee told her friend to go look for Johnsen, but
    her friend could not find him. Lee’s friend then went to
    Landrum’s mother, who lived two doors down to see if she would
    take the paper bag. His mother agreed to do so. A few weeks
    later, Johnsen sold a combination clock-radio-telephone to Lee.
    (e) Police Investigation
    On March 10, Rudy enlisted a moving company to pack
    her belongings at her home. During the move, a company
    employee informed Detective Taylor, who was at Rudy’s home
    that day, that he found a bent five-inch kitchen knife covered in
    dried blood inside a dried flower vase in the guest bedroom. Lab
    testing found that the caked-on blood contained a mix of
    phosphoglucomutase (PGM) types matching Juanita’s and Leo’s
    blood. Because Landrum has the same 2+1+ PGM type as
    Juanita, he could not be categorically ruled out as a contributor
    to the blood on the knife.
    Sometime between March 1 and March 25, Johnsen and
    Landrum gave or sold Jorge Romo a pair of yellow dishwashing
    gloves. Romo later gave the gloves to the police, and blood on
    the gloves was found to have a DQ-Alpha type of 1.3,2, the same
    as Juanita’s.
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    PEOPLE v. JOHNSEN
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    About two weeks after March 1, Johnsen and Landrum
    drove to San Jose to visit Johnsen’s mother and grandparents.
    On the drive, Johnsen attempted to hand Landrum the front
    door key to Rudy’s home. When Landrum refused to take the
    key, Johnsen threw it out of the car window along with a ball
    peen hammer inside a blue sweatshirt. No home key or hammer
    was ever recovered by the police.
    On March 25 or 26, Landrum accompanied Detective
    Jolene Gonzales to his mother’s home, where Detective Gonzales
    took a calculator, jewelry, and three telephones into evidence. A
    few days earlier, Landrum’s mother asked Landrum to take the
    suspicious goods away from her home, which she received from
    Lee and Lee’s friend, who had in turn received them from
    Johnsen. Rudy identified two of the phones as hers and believed
    the third phone was the one her parents traveled with. Rudy
    also said the jewelry was hers and the calculator was owned by
    her father.
    On March 26, Detective Taylor contacted Johnsen’s
    mother about the goods Johnsen asked Landrum to hide.
    Johnsen’s mother initially said she had no knowledge of the
    items, though she later conceded she kept them a secret because
    she “didn’t want to hang her own son.” The detectives picked up
    Johnsen’s mother, and they went to her aunt and uncle’s home,
    where they picked up a box of china plates, a boom box, a video
    recorder, a portable bar set, and a microwave. Rudy identified
    these as her property. An evidence technician discerned Rudy’s
    daughter’s fingerprints on the china plates.
    (f) Post-arrest Communications
    Johnsen was arrested on March 26. Johnsen called Lee
    from jail, and he learned that she had turned over to Detective
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    Grogan the combination clock-radio-telephone he (Johnsen) had
    sold her. Upon hearing this, Johnsen responded, “I’m done for
    now.” Johnsen asked Lee if she would pretend to have memory
    loss during future conversations with the police since they
    “couldn’t do anything” to her. Informing her that he had a key
    to Rudy’s home because his mother used to rent that unit,
    Johnsen inquired whether Lee knew of anyone who would break
    into Rudy’s home while he was in jail to draw suspicion away
    from him. Rudy later identified the combination clock-radio-
    telephone as hers.
    From jail, Johnsen also called Chester Thorne, Lee’s
    boyfriend and a recent acquaintance of Johnsen’s. Johnsen
    inquired if Thorne knew of anyone who would be willing to
    “whack” Landrum and an unspecified woman, which Thorne
    understood to mean “kill.” Johnsen wanted Landrum and the
    unspecified woman killed with a hammer and stabbed, and for
    the crime scene to be as bloody as possible. Johnsen also wanted
    the person to place a telephone and other items into a dumpster.
    According to Johnsen, these steps would cause the police to
    think that the person who assaulted the Braggs remained at-
    large, “still out there killing people.”
    Although Thorne did not intend to help Johnsen, he
    wanted to find out “for sure” whether Johnsen “really did kill
    them two old people,” so he promised to look into it. When
    Johnsen asked Thorne if he would commit the requested
    murders in return for a “favor,” Thorne refused, saying he would
    find someone else. Thorne did not tell the police about this call
    because there was a warrant out for his arrest for an unrelated
    matter, but he also took no steps to carry out Johnsen’s request.
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    At some point, Thorne was jailed for receiving stolen
    property, unrelated to the offenses at issue here. While Thorne
    was incarcerated in the Stanislaus County jail, Johnsen passed
    him notes. Thorne copied one of Johnsen’s notes in his own
    handwriting before handing the note back to Johnsen. That
    copied note instructed Thorne to inculpate “Mouse” (i.e.,
    Landrum) for the crimes at Rudy’s home, provided a set of
    “facts” for Thorne to rely on, and advised Thorne to tell the police
    Landrum “said he would kill you & Linda if you ever tell.”
    Thorne also testified about another of Johnsen’s notes, in
    which Johnsen instructed Thorne and Lee as follows:
    “When Linda [Lee] is asked (on the stand) what it
    was that I said to her when I handed her the bag of
    property, she must not remember what I said to her.
    . . . [E]ven when [the police officer] remind[s] her,
    she still must have no memory of the words I said!
    No matter what! I will protect you and Linda till the
    day I die. I expect the same from both of you. . . .
    Remember, if you or Linda is asked a question, and
    you know the truth will hurt me, lose your memory!”
    Thorne eventually pleaded guilty to various unrelated
    crimes, and in exchange for his truthful testimony against
    Johnsen, he received a reduced jail sentence of 16 months.
    (g) Confession to Eric Holland
    From June to August 1992, Johnsen was housed in a
    Stanislaus County jail cell next to Eric Holland. Holland had
    previously been convicted of counterfeiting and forgery in
    federal court, and he also faced several pending felony charges
    for forgery and auto theft in several counties.
    According to Holland, Johnsen repeatedly tried to
    convince nearby inmates to kill Landrum and Landrum’s
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    girlfriend. Holland “wanted to get [Johnsen] to shut up,” so
    Holland fabricated “a colonel in San Diego that could take care
    of it” for “a lot of money.” After hearing this, Holland thought
    Johnsen would “blow his smoke” and “that would be the end of
    it,” but Johnsen offered to pay the made-up contract killer with
    his Harley-Davidson motorcycle, some commissary credit, and
    any unconditional favors Holland might need in the future.
    Holland told Johnsen “the colonel owed him a favor worth
    $50,000” and therefore Holland’s use of that favor on Johnsen’s
    behalf would mean that Johnsen owed Holland $50,000.
    Initially, Johnsen offered Holland a written confession for
    his role in the death of Johnsen’s pregnant girlfriend, Terry
    Holloway, in San Diego, discussed in greater detail further
    below. Holland rejected this offer as inadequate collateral
    because he was concerned the confession could not be verified.
    He insisted that Johnsen’s confession be related to his pending
    charges. Johnsen agreed to confess to the crimes at Rudy’s
    home. He instructed Holland to tell the colonel to kill Landrum,
    Landrum’s girlfriend, Landrum’s mother, Landrum’s uncle and
    girlfriend, Detective Grogan, Officer Fred Vaughn, Thorne, and
    Lee.
    Johnsen told Holland three different versions of Juanita’s
    murder. First, Johnsen claimed Landrum murdered the Braggs
    and that Landrum was framing him. Second, Johnsen said that
    both he and Landrum killed the Braggs. Third, Johnsen
    admitted that he alone was involved in Juanita’s murder and
    the crimes at Rudy’s home.
    Johnsen told Holland specific details leading up to
    Juanita’s murder. He had previously burglarized Rudy’s home
    twice — once in September 1991 and once in February 1992 —
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    while he was living at his mother’s home nearby. During the
    first burglary, he broke into Rudy’s home to steal cash on a
    countertop. At the time of the second burglary, Johnsen asked
    Landrum to help him steal a television from Rudy’s home, but
    Landrum could not make it. During one of these burglaries,
    Johnsen stole the front door key to Rudy’s home.
    Johnsen told Holland he had planned to move into an
    apartment on March 1 with Landrum. The evening of February
    29, he and Landrum got “stoned” and played games. After
    Landrum returned to his mother’s home for the night, Johnsen
    stayed awake watching television before eventually going to
    bed.
    Around 5:30 a.m. on March 1, Johnsen woke up and “got
    dressed to kill.” Because he was about to move away, Johnsen
    knew that this was his last opportunity to rape and kill Rudy,
    and he wanted to see if he could “do it.” Johnsen went into his
    mother’s kitchen to grab a pair of yellow dishwashing gloves, a
    knife, and a ball peen hammer. Using Rudy’s spare front door
    key, Johnsen entered Rudy’s home through the front entrance.
    Johnsen entered Rudy’s bedroom, which he found to be
    empty, before heading to the guest bedroom. Spotting an elderly
    couple asleep, he stood beside their bed for three minutes
    contemplating if he had the nerve to murder them. Johnsen
    then began stabbing Juanita and Leo with the knife and
    bludgeoning them with the hammer. As Johnsen stabbed them
    through the blanket, the knife he brought bent, so he went to
    the kitchen to get more knives. When Johnsen hit Leo in the
    head with the hammer, he assumed Leo had died when he saw
    Leo’s skull depress an inch. To ensure he killed Juanita,
    Johnsen stabbed her body and slit her wrist and throat.
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    After he grabbed money from Leo’s wallet and Juanita’s
    purse, Johnsen walked around Rudy’s home and found other
    items to steal, including Leo’s calculator, several telephones,
    and a camera. He returned to the guest bedroom and noticed
    Juanita was still alive. To avoid being identified, Johnsen took
    a pair of pantyhose from Rudy’s dresser and placed it over his
    head before reentering the guest bedroom to stab Juanita again.
    As the sun began to rise, Johnsen rushed to leave Rudy’s home
    with a bag of stolen goods. He placed the bag by a dumpster
    before going inside his home. Johnsen told his mother he was
    jogging early in the morning and then went to McDonald’s for
    breakfast with the rest of the household. As they were moving
    out, Johnsen saw an ambulance in front of Rudy’s home around
    3:00 p.m.
    After learning some of these details, Holland informed his
    attorney about Johnsen’s crimes, but Holland also asked his
    attorney “not to say anything” about Holland because he did not
    want to risk being labeled a snitch while in jail. Still, Holland
    wanted the district attorney to know about the confession
    because he believed Johnsen was “sick,” and without the
    confession, Holland was worried Johnsen might “get off” and kill
    others.     Holland’s attorney informed District Attorney
    Investigator Fred Antone.
    Believing Johnsen’s signed confession would be sufficient,
    Holland was under the impression he would not need to testify
    at Johnsen’s trial for the notes to be admissible. But on June
    26, 1992, Antone arranged a meeting with Holland and his
    attorney, during which Antone informed Holland that he would
    need to testify or Johnsen’s written confession would be
    inadmissible at trial. At the meeting, Holland told Antone that
    if he had to testify, he wanted his state sentence to run
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    concurrently with his federal term, so he would not be
    villainized as an informant while serving time in a California
    prison. Antone made no promises, telling Holland: “[I] want
    you to understand that I’m not asking you to be a police agent
    and do these things for me.”
    Informing Antone that he could probably get Johnsen to
    disclose details about Holloway’s murder in writing, Holland
    asked, “Should I continue, should I stop?” Antone responded,
    “Well, that’s, that’s up to you, Eric.” Holland’s attorney then
    advised him, “The only agreement that they’re making with you
    at the moment is not to use any of this against you.” At the close
    of the meeting, Holland signed a written form acknowledging
    that he was receiving nothing in return for his continued
    engagement with Johnsen.
    On July 3, 1992, Holland and Antone met again. At that
    meeting, Holland said that he could get a written confession
    from Johnsen soon, but that he would not hand over the
    confession unless the prosecutor cut him a deal. Antone refused,
    saying, “If you have any idea that you even think you’re working
    for us, stop,” and he stressed, “I don’t want you to do anything
    to try and make my case [against Johnsen] better.”
    Over several weeks, between June and a few days after
    Holland’s July 3 conversation with Antone, Johnsen gave
    Holland several written notes, prompted by questions from
    Holland. In the first, Johnsen claimed Landrum committed the
    crimes. In the second, Johnsen wrote that he and Landrum
    committed the crimes together. For the third, Johnsen wrote
    out two or three pages detailing his sole responsibility for the
    crimes.     Holland rejected this confession as inadequate
    collateral because it offered only cursory details. Consequently,
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    Johnsen prepared a 14-page account with two one-page
    supplements, where Johnsen again took sole responsibility.
    Johnsen also prepared additional notes detailing various
    aspects of the crime. Johnsen flushed the first note and third
    note down his toilet.
    By September 1992, Holland refused to testify at trial
    because the district attorney had still not entered into any
    agreement with him. Soon after, Holland was served a search
    warrant of his cell, and several notes were confiscated, including
    Johnsen’s 14-page confession. A handwriting expert confirmed
    that the writing on the confession and notes matched Johnsen’s
    handwriting. Johnsen’s fingerprints were also found on all but
    one of the pages of his written confession and on all of the notes
    passed between Johnsen and Holland. Only after Holland was
    told that he would be subpoenaed did he agree to testify.
    Holland committed to tell the truth at Johnsen’s trial; in
    exchange, his state sentence would run concurrently with his
    federal sentence.
    2. Defense Case
    (a) February 29 – March 1, 1992
    On March 1, David Johnson, a coworker of Johnsen’s
    mother and unrelated to the Johnsens, moved into the home as
    Johnsen and his mother were moving out. Johnson noticed a
    gauze bandage around Landrum’s left hand, and he
    remembered Landrum playing with the bandage.
    Johnsen’s mother learned from Johnsen that an unknown
    person’s blood was found on the knife, in violation of the court’s
    order not to discuss her testimony with Johnsen. Following that
    conversation, she recalled seeing Landrum with a bandage on
    his hand. Johnsen’s mother also testified that she gave
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    Landrum a spare key to her home so he could help care for her
    cats. Landrum handed the key back to her four days later, well
    before March 1. Antone testified that he recalled seeing a
    quarter-inch scar between Landrum’s thumb and forefinger,
    “near the webbing.” Landrum told Antone that he got the scar
    eight years ago while playing a knife game.
    Johnsen’s mother also testified that when she went to bed
    on February 29 around 10:30 p.m., Johnsen was still lying on
    the sofa watching television. Around 3:00 a.m., she woke up to
    stop a running toilet, and because she saw Johnsen asleep on
    the sofa with the television still on, she turned the television off.
    Around 6:40 or 6:45 a.m., Johnsen’s mother woke up to see
    Johnsen awake on the couch. The two of them went to
    McDonald’s for breakfast with their housemates, the Greshams,
    around 7:00 a.m. and returned to the home between 7:30 to 7:45
    a.m. Around noon, Johnsen and Landrum went for a 10-minute
    walk to buy soda and beer. They spent the rest of the afternoon
    moving out of the home, leaving for good around 5:00 p.m.
    Ray Gresham, a cotenant of the Johnsens, testified that he
    and his six-year-old stepdaughter woke up around 6:30 to 7:00
    a.m. to find Johnsen and his mother already awake. All of them
    went to McDonald’s, and they spent the rest of the day moving
    out. Gresham recalled Johnsen leaving the home around 10:00
    a.m. for about 30 minutes to buy soda.
    After testifying for the prosecution, Landrum was recalled
    as a defense witness. Landrum testified he was 99 percent sure
    that on the night of February 29, he left Johnsen’s home
    between 10:00 to 10:30 p.m. and slept at his mother’s house. The
    only other person there with him that night was his mother, who
    left for work around 6:00 a.m. On the morning of March 1, he
    16
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    woke up at his mother’s home at around 8:00 a.m., had
    breakfast, and watched television. Around 10:00 a.m., he drove
    to Johnsen’s home to help the Johnsens move out. Landrum
    denied having a cut on his hand that morning or wearing a
    bandage on his hand. He denied ever possessing a key to
    Johnsen’s home, aside from the day when Johnsen “went away
    with the police” and Johnsen left Landrum his house key. He
    returned that key to Johnsen’s mother later that day. Landrum
    also denied participating in any crimes at Rudy’s home.
    (b) Juanita’s Time of Death
    Dr. Ernoehazy, a time of death expert, testified that he
    had performed over 10,000 autopsies and testified on time of
    death hundreds of times. As noted, Dr. Ernoehazy examined
    Juanita’s body inside Rudy’s home around 6:00 p.m. on March
    1. He observed that her body had not yet begun to decompose,
    which led him to conclude she had not been deceased for “a very
    long period of time.” Based on her body’s lividity and rigidity,
    he estimated that Juanita likely died between six to eight hours
    before 6:00 p.m. — in other words, between 10:00 a.m. and 12:00
    p.m.
    During the preliminary hearing, Dr. Ernoehazy said that
    Juanita’s injuries were probably inflicted no more than one or
    two hours before her death, which would place the attack
    between 8:00 a.m. to 11:00 a.m. At trial, Dr. Ernoehazy could
    not recall exactly the basis for that prior estimate, and he opined
    that the amount of bodily hemorrhaging and vital reaction
    suggested that Juanita likely died several hours after her
    injuries. On cross-examination, Dr. Ernoehazy conservatively
    estimated that Juanita died more than five minutes but less
    than 24 hours after sustaining her injuries, which was
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    consistent with the prosecution’s theory that Juanita was
    mortally wounded by Johnsen at around 5:00 or 6:00 a.m. on
    March 1.
    (c) Eric Holland
    A witness testified that he sold a 1987 Porsche to Eric
    Holland for a $20,600 cashier’s check in 1990. The cashier’s
    check turned out to be fraudulent.
    3. Prosecution Rebuttal
    Detective Grogan testified that he did not see a bandage
    on Landrum’s hand when he saw Landrum on March 1 at 7:00
    p.m. Detective Taylor testified that Johnsen’s mother told him
    that she woke up at 7:00 a.m. on March 1 and that Gresham said
    he woke up around 7:30 a.m. that day.
    B. Penalty Phase
    1. Prosecution Case
    (a) Prior Criminal Acts
    Holloway’s former coworker Edward Nieto saw Johnsen
    slap Holloway’s face multiple times with his open hand. In June
    1990, Johnsen threatened to hit Nieto’s new car with a bat
    because he had offered to give Holloway a ride to work. When
    Nieto called to check on Holloway, Johnsen answered the phone,
    and Holloway had been tied up. When Johnsen placed the phone
    over Holloway’s ear, she sounded fearful. However, she asked
    Nieto not to call the police. The next time Nieto saw Holloway
    at work, she had cut wrists and marks around her ankles. Three
    days later, Johnsen came to their work and pointed a gun at
    Nieto. Johnsen threatened to kill Nieto if Holloway refused to
    talk to him.
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    PEOPLE v. JOHNSEN
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    On May 17, 1991, Holloway’s body was found in a drainage
    ditch off a highway in San Diego. Forensic pathologist and
    deputy medical examiner Dr. Mark Super autopsied Holloway’s
    body. At the time of her death, Holloway was 16 to 17 weeks
    pregnant with Johnsen’s child. Dr. Super observed that
    Holloway had suffered several face and scalp lacerations, facial
    bone fractures, defensive wounds on her hands, and
    strangulation abrasions on her neck. Her injuries were
    consistent with assault with a scissor jack and strangulation, as
    evidenced by hemorrhaging in her eyes, deep neck bruises, and
    fractures in her larynx and hyoid bone. He opined that
    Holloway died by strangulation and blunt force injury to her
    head.
    At the time of Holloway’s death, Johnsen was confined at
    the San Diego County jail. Two days before the discovery of
    Holloway’s body, Johnsen called his friend Mark Schmidt and
    asked to speak with Robert Jurado. Schmidt, Jurado, Denise
    Shigemura, and Holloway all went to Schmidt’s apartment to
    await Johnsen’s call. When Johnsen called, Jurado and
    Shigemura took the call in another room. Johnsen also spoke
    privately to Holloway. Around then, Jurado’s girlfriend, Anna
    Humiston, arrived at the apartment.
    After Johnsen ended the call, Schmidt gave Jurado a Weed
    Eater wire, which Schmidt characterized as a clear thin plastic
    line used for lawn trimmers. Jurado looped the wire around his
    neck, tightened it, and commented, “[t]hat will do.” At Jurado’s
    insistence, Schmidt told Holloway to leave with everyone else.
    At around 8:45 p.m., everyone except Schmidt left the
    apartment.
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    PEOPLE v. JOHNSEN
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    On May 16, Humiston called her friend Melissa Andre and
    told her that she was involved in something very bad with
    Jurado and Shigemura. Humiston told Andre that the three of
    them had murdered Holloway on May 15. While Holloway was
    sitting in the front passenger seat of Shigemura’s car, Jurado
    and Humiston sat in the back seat. Jurado began strangling
    Holloway with the wire as Humiston punched Holloway. “Why
    are you killing me and my baby?” Holloway screamed, as she
    begged them to “[p]lease stop.” They pulled to the side of the
    highway, which allowed Jurado to throw Holloway’s body into a
    ditch and beat her with a tire jack to confirm she was dead.
    Another friend of Humiston’s, Mia Rodigues, testified that
    Humiston told her on May 16 that she helped kill “Terry.” She
    told Rodigues how it happened: while in the car, Humiston
    pinned Holloway’s arms down as Jurado strangled her with a
    rope and killed her with a car jack. With Humiston’s help,
    Jurado then threw Holloway’s body into a ditch. On May 17,
    Humiston and Rodigues spoke and discussed Holloway’s murder
    again. According to Humiston, during the attack, Holloway
    pleaded, “[w]hy me?” and “[t]ell me why.”
    Holland testified regarding Johnsen’s notes confessing to
    his involvement in Holloway’s murder, which occurred about a
    year before the crimes at Rudy’s home. That handwritten note
    was admitted into evidence. A handwriting expert confirmed
    the note’s writing as consistent with Johnsen’s, and a
    fingerprinting expert found latent prints from Johnsen and
    Holland on the note.
    Johnsen’s written confession offered an account consistent
    with the testimony of the other witnesses. Johnsen called
    Schmidt so he could speak with Jurado and Shigemura. All of
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    them went to Schmidt’s house with Holloway, as did Humiston.
    Jurado and Shigemura learned from Johnsen that Holloway
    threatened to tell drug dealer Doug Mynatt that Johnsen,
    Jurado, and Shigemura were planning to kill him. Johnsen was
    also angered because Holloway was using methamphetamine
    while pregnant with their child. Johnsen then spoke privately
    with Holloway and conveyed his anger about her threats to
    “snitch” on them for planning to kill Mynatt. He noted her
    actions would “get a lot of people killed, including me.” Johnsen
    spoke again privately with Jurado, who said they would need to
    kill Holloway. If Johnsen could persuade Holloway to leave
    Schmidt’s apartment with the others, Jurado agreed to “do the
    rest.”
    Johnsen then told Holloway that he would tell her
    everything she wanted to know later, and he encouraged her to
    leave with Jurado, Humiston, and Shigemura.            Johnsen
    promised to call her later that evening. Two days later, on May
    17, the police informed Johnsen that Holloway had been
    murdered. Johnsen told them he believed Brian Dick, a drug
    dealer, was the perpetrator because Holloway owed him money.
    On September 1, 1991, San Diego District Attorney
    Investigator Anthony Bento interviewed Johnsen as a witness
    in Holloway’s murder. Johnsen admitted his involvement in the
    conspiracy to murder Mynatt. He also expressed sadness about
    the death of Holloway and their unborn child. Jurado,
    Shigemura, and Humiston pleaded guilty or were convicted of
    Holloway’s first degree murder. (See People v. Jurado (2006) 
    38 Cal.4th 72
    , 82.) The record does not reflect whether Johnsen
    was charged with any crimes related to Holloway’s murder.
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    PEOPLE v. JOHNSEN
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    (b) Victim Impact Evidence
    Dr. Lloyd Brown, the medical director of Leo Bragg’s
    outpatient rehabilitation facility, testified about Leo’s recovery.
    Leo spent half a year at the facility from June 1992 to December
    1992. Before his arrival, Leo had already received physical
    rehabilitation for his injuries, so Dr. Brown’s efforts centered on
    restoring Leo’s cognitive and communication capabilities. Upon
    Leo’s arrival, his ability to process information was severely
    debilitated, and he could not use proper facial expressions or
    speak except for an occasional word. Leo began to regain control
    of his bladder, but it was not safe to leave him alone at any time
    due to impulsivity that arose due to his brain injuries. After half
    a year of cognitive rehabilitation, Leo left the facility still very
    impaired; he still could not carry on a conversation orally or in
    writing. In Dr. Brown’s view, Leo would never be able to live
    alone or make his own decisions; he would need constant
    supervision for the rest of his life.
    The Braggs’ adult children testified about their mother’s
    death and the caretaking duties they took on for their father.
    Rudy constantly visualized her mother’s dead body, and her
    mother’s death affected her daily. Rudy’s personality changed
    after the murder, causing her to become fearful and avoid
    people. Rudy also felt personal guilt for her mother’s death and
    father’s near-death injuries, believing that she should have
    realized her key was missing sooner and that she should not
    have left town for the weekend. Leo Bragg, Jr., testified about
    his difficulty coping with the loss of his mother.
    After the attack, Leo spent three months in the hospital,
    a few days with Rudy, and the next six months at a cognitive
    rehabilitation facility in Tennessee. During Leo’s brief stay with
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    Rudy, he could not communicate with her, his actions were
    unpredictable, and he had no control over his body. Because his
    injuries prevented him from communicating properly, Rudy felt
    as though she had lost him too.
    Leo, Jr., and his wife took on full-time caretaking duties
    for his father. Constantly agitated, frightened, emotional, and
    impulsive, Leo had to be constantly supervised; as a result, Leo,
    Jr.’s wife quit her part-time college teaching job to care for him
    and usher him between his medical and rehabilitation
    appointments. Leo had to be retaught basic tasks as though he
    were a child, which was made more difficult by the fact that they
    could no longer communicate with him. He regularly broke
    down emotionally every time he saw a picture of Juanita. After
    15 months of familial caregiving, he was moved to an assisted
    living facility. By that time, Leo could only muster smiles,
    handshakes, and an occasional farewell.
    2. Defense Case
    Clinical psychologist Dr. Gretchen White prepared a
    psychosocial history of Johnsen. She reviewed case materials,
    educational records, and mental health records. She also
    interviewed Johnsen’s family and his mental health clinicians.
    Her report revealed that Johnsen had warning signs for
    future psychological problems as early as infancy. Johnsen was
    a “difficult” baby, cried often, had frequent infections, and had
    difficulty sleeping. His father was routinely absent from
    Johnsen’s childhood because of his naval service, so he barely
    parented his sons. Johnsen was the eldest sibling, and he was
    talented at the piano, which improved his self-esteem until he
    quit playing at age eight or nine. Johnsen’s grandparents were
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    involved in Johnsen’s life, including whenever his parents were
    absent.
    During his early childhood, Johnsen was prescribed
    Ritalin for his defiant, erratic, and fidgety behavior in school.
    Dr. White suspected that Johnsen had attention deficit
    hyperactivity disorder (ADHD) and that his mother’s lack of
    structure exacerbated its effects. His parents took him off
    Ritalin at age eight or nine without medical consultation.
    Johnsen’s father was concerned the drug was stunting his
    growth, and his mother believed he no longer needed it because
    he was doing well in school. Johnsen’s behavioral problems
    returned after his prescription was discontinued.
    During Johnsen’s early teenage years, his parents
    separated and divorced. Following the separation, Johnsen’s
    father became more involved in his life, but his involvement
    declined when he remarried. Johnsen disliked his stepmother;
    she in turn was critical of him. At one point, Johnsen gave his
    father an ultimatum, demanding that his father choose between
    him or his stepmother. When Johnsen was 16 years old,
    Johnsen’s father discontinued his relationship with his sons,
    and Johnsen’s tearful pleas for him to visit were rebuffed. After
    that, Johnsen’s father only contacted his sons by sending cards
    to them for their birthdays and for Christmas, with a few dollars
    inside.
    Robert Remmer, a friend of Johnsen’s mother who lived
    with the Johnsens for about 10 years, babysat Johnsen when his
    mother traveled for work. Remmer exerted minimal discipline
    in Johnsen’s life, and he often smoked pot and ingested
    methamphetamine with Johnsen and Johnsen’s brother, Kevin.
    Dr. White identified Johnsen’s mother’s boyfriend, Jack
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    Minteer, as a positive influence on his life when he was 17.
    When Johnsen’s mother and Minteer broke up, his departure
    disappointed Johnsen.
    In middle school, Johnsen began using pot. He started
    using methamphetamine about a year later, at age 14 or 15.
    Johnsen may also have used LSD and cocaine. A neighbor of the
    Johnsens told Dr. White about an incident in Johnsen’s teenage
    years when the neighbor’s bathroom window screen was slashed
    and a hand was stuck through it while his daughter was
    showering. The neighbor went to Johnsen’s home, where he saw
    a carpet knife on the table, and Kevin told him that Johnsen had
    been cutting window screens around the neighborhood.
    After Johnsen overdosed and was hospitalized at age 17,
    he was enrolled in a drug treatment program with his brother.
    While undergoing treatment, Johnsen lamented the absence of
    his father in his life. A psychologist found that Johnsen’s loss of
    his father from his life had a strongly negative impact on him.
    The psychologist also noticed Johnsen had a fear of failing due
    to anticipation of criticism and that his fear of failure infected
    his daily life. He diagnosed Johnsen with an “under socialized,
    nonaggressive” conduct disorder as well as cannabis and
    amphetamine dependency. The psychologist spotted symptoms
    consistent with ADHD, dysthymic disorder, and borderline
    personality disorder, but he never formally diagnosed Johnsen
    with any of those conditions because he was hesitant to label
    teenagers whose brains and personalities were still in flux.
    Upon Johnsen’s discharge, the treatment center
    recommended that Johnsen be moved into a residential
    treatment program, but he ended up moving back in with his
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    mother. Following treatment, Johnsen maintained sobriety for
    about six months.
    Johnsen, his brother, and his mother were referred to
    outpatient counseling with a family therapist. They received
    counseling for 20 to 25 weeks. During these sessions, Johnsen’s
    mother regularly complained about Johnsen and his brother,
    and said she had no time to raise them because of her work.
    Johnsen disliked these counseling sessions and often expressed
    his anger and depression during them. But the therapist
    avoided prescribing Johnsen antidepressant medication in light
    of Johnsen’s history of drug abuse. These sessions caused the
    therapist to believe that Johnsen suffered from dysthymic
    disorder, borderline personality disorder, and major depressive
    episodes. The therapist did not suspect that Johnsen suffered
    from any antisocial personality disorders. At age 19, Johnsen
    was once again entered into a drug treatment program.
    A former director of the California Department of
    Corrections testified about Johnsen’s three disciplinary reports
    during his two-year pretrial detention, which included not being
    dressed in time for court, not being out of jail clothes in a timely
    manner, and unauthorized possession of the painkiller Motrin.
    Based on Johnsen’s behavior while incarcerated, he concluded
    that Johnsen would not be a danger to others if he were
    sentenced to life without the possibility of parole. But he had no
    answer to whether he was confident Johnsen would stop
    soliciting the murder of witnesses and others from inside prison.
    II. PRETRIAL ISSUES
    A. Denial of Motion To Change Venue
    Johnsen contends that the trial court erred in denying his
    motion to change venue from Stanislaus County. According to
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    Johnsen, the county’s media outlets engaged in “inflammatory
    coverage” that publicized inadmissible evidence and erroneously
    reported that Johnsen had “attempt[ed] to manipulate the
    system and delay the trial, thereby costing the county thousands
    of dollars.” He alleges that the court’s denial here deprived him
    of a fair jury trial in violation of the Sixth Amendment to the
    federal Constitution.
    1. Background
    Before trial, in November 1993, Johnsen moved for a
    change of venue pursuant to section 1033. In support of his
    motion, Johnsen compiled about 20 news articles pertaining to
    his case and attached a survey report by Dr. Stephen J.
    Schoenthaler, a criminal justice professor at California State
    University, Stanislaus, which concluded that Johnsen could not
    have a fair trial in Stanislaus County.
    The district attorney opposed Johnsen’s motion, arguing
    that Professor Schoenthaler’s survey did not even ask
    interviewees the crucial question: whether they would be
    willing to set aside their preexisting views and decide the case
    based on evidence introduced at trial. The prosecutor’s
    opposition also noted that all 35 relevant newscasts aired in
    March 1992 in the weeks after Juanita’s murder and at the time
    of Johnsen’s arrest — nearly two years before Johnsen’s trial
    began in February 1994.
    The trial court held a four-day hearing on Johnsen’s
    motion. Reviewing the newscasts, the court noted that in the
    aftermath of Juanita’s killing, journalists used fairly strong
    language to describe the scene, characterizing it as “an awful
    story,” a “tale too horrible to believe,” a “vicious and baffling
    crime,” and a “brutal crime against innocent people” with “no
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    motive.” On March 3, some newscasts noted a $10,000 reward
    for information leading to the perpetrator’s arrest. Upon
    Johnsen’s arrest, a few newscasts used photos of Johnsen as the
    suspect, noting that Johnsen had been acting suspiciously.
    Finally, on March 30, 1992, one newscast suggested that the
    investigation into Johnsen had unearthed some evidence linking
    him to the crime scene.
    At the hearing, the court also considered testimony from
    several experts. Professor Schoenthaler detailed his survey
    findings, whose bottom-line findings purported to establish that
    Johnsen could not receive a fair trial in Stanislaus County. To
    conduct the survey, defense investigators randomly called
    Stanislaus County phone numbers and asked 239 adult
    respondents whether they had been exposed to pretrial publicity
    pertaining to Johnsen’s case. The survey found that 70 percent
    of respondents had already heard of Johnsen’s case, that 41
    percent believed Johnsen killed Juanita, and that 60 percent
    believed that Johnsen, if convicted, deserved the death penalty.
    Prosecution expert Dr. Ebbe Ebbesen, a psychology
    professor at University of California, San Diego, contested the
    survey findings. Before Johnsen’s trial, Dr. Ebbesen had
    testified in opposition to venue change motions 25 times. First,
    he criticized change-of-venue surveys generally, arguing that
    such studies are poor predictors of how jurors may behave at
    trial. Second, Dr. Ebbesen contested the survey’s selection
    methodology on the ground that the survey participants were
    unrepresentative of the people who might be called for jury duty
    and unrepresentative of those who might actually be selected for
    the jury following voir dire. Third, Dr. Ebbesen rejected the
    survey’s bottom-line conclusion in light of the questions asked,
    opining that the questions did not accurately pinpoint
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    respondents who had prejudged the case based on media
    exposure. Finally, even taking the survey results at face value,
    Dr. Ebbesen opined that 44.1 percent of residents had no
    exposure to media publicity whatsoever and had no fixed view
    about the case, and that less than one in four residents could
    present impartiality problems in light of the case’s publicity.
    After hearing from both sides, the court had “serious
    doubts about the validity of the defendant’s survey.” Professor
    Schoenthaler’s survey, according to the court, “was not
    conducted in a manner to ensure that the respondents were
    representative of the individuals who might serve on the jury for
    this case,” and it failed to “ask a sufficient range and variety of
    questions to provide good evidence about the meaning of the
    responses.”
    The court also found that based on Dr. Ebbesen’s
    testimony, the survey “did not show the high numbers of persons
    that were so affected that they could not be fair and impartial.”
    “No more than 20 percent of the venire have knowledge and
    attitudes that might prevent them from serving in a fair
    manner.” The court also observed that “editorializing in both
    [the defense expert’s] report and in his testimony” suggested
    “some bias toward the defense.” In the end, the court credited
    Professor Ebbesen’s report over Professor Schoenthaler’s
    survey.
    The court observed that the nature and gravity of
    Johnsen’s offense supported a venue change, but that all of the
    other legally relevant factors weighed in the other direction.
    The court ultimately denied Johnsen’s motion, finding there was
    not a reasonable likelihood that Johnsen could not receive a fair
    and impartial trial in Stanislaus County. Still, the court left
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    Opinion of the Court by Liu, J.
    open the option for Johnsen to renew his venue change motion
    if issues arose during the jury selection process. In response,
    Johnsen sought a writ of mandate in the Court of Appeal, which
    the court denied. (Johnsen v. Superior Court, writ petition
    summarily denied Jan. 28, 1994, F020985.)
    2. Discussion
    The Sixth Amendment guarantees the right to “an
    impartial jury.” (U.S. Const., 6th Amend.) In furtherance of
    this right, California law provides that “the court shall order a
    change of venue . . . [¶] . . . [o]n motion of the defendant, to
    another county when it appears that there is a reasonable
    likelihood that a fair and impartial trial cannot be had in the
    county.” (§ 1033; see People v. Smith (2015) 
    61 Cal.4th 18
    , 39 [a
    “ ‘ “reasonable likelihood” . . . “means something less than ‘more
    probable     than not’ ”        and    “something more than
    merely ‘possible’ ” ’ ”].) To make this determination, the court
    must consider “the nature and gravity of the offense, the nature
    and extent of the media coverage, the size of the community, and
    the community status of the defendant and the victim.” (Smith,
    at p. 39.)
    “The trial court’s essentially factual determinations such
    as the gravity of the crimes, the size of the community, the
    status of the defendant and victims, and the nature and extent
    of the pretrial publicity, will be sustained if supported by
    substantial evidence. We independently review the trial court’s
    ultimate determination of the reasonable likelihood of an unfair
    trial.” (People v. Cooper (1991) 
    53 Cal.3d 771
    , 806.) On appeal,
    Johnsen must show both error and prejudice — i.e., it was (1)
    “ ‘reasonably likely that a fair trial could not be had in’ ”
    Stanislaus County at the time of his motion, and (2)
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    “ ‘reasonably likely that a fair trial was not had’ ” based on voir
    dire of prospective and actual jurors. (People v. Famalaro (2011)
    
    52 Cal.4th 1
    , 21 (Famalaro).) Because we find no error in the
    court’s denial of Johnsen’s motion to change venue, we do not
    proceed to consider prejudice.
    Beginning with the first factor, there is no doubt that the
    nature and gravity of Johnsen’s alleged offenses — the capital
    murder and attempted murder of an elderly couple while they
    were asleep — are grave allegations that weigh in favor of a
    venue change, as the trial court noted. (People v. Jennings
    (1991) 
    53 Cal.3d 334
    , 360; People v. Hamilton (1989) 
    48 Cal.3d 1142
    , 1159.) As the press coverage highlights, people in the
    community “lived in fear” after this violent home invasion and
    viewed the “brutal crime against innocent people” as
    particularly sensational. But because the nature and gravity of
    the offenses in this case are not dispositive by themselves in
    favor of a venue change (cf. Hamilton, at p. 1159 [there is no
    “presumption in favor of a venue change in all capital cases”]),
    we proceed to consider the other factors.
    With respect to the second factor, substantial evidence
    supports the trial court’s assessment that the nature and the
    extent of media coverage in Johnsen’s case does not weigh in
    favor of a venue change. According to Johnsen, some media
    reports pertained to inadmissible evidence, hinted at Johnsen’s
    confession, inaccurately reported that “detectives found a bloody
    hammer, bloody tennis shoes and several of Sylvia Rudy’s
    possessions in [Johnsen’s] apartment,” and were potentially
    inflammatory by noting Johnsen’s possible involvement in a
    different homicide and his invocation of his Fifth Amendment
    right to silence. Johnsen also complains that a few articles
    noted that his case had gone through several lawyers who had
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    Opinion of the Court by Liu, J.
    declared conflicts of interest through no fault of Johnsen’s and
    that Johnsen had filed a $1 million lawsuit against one of his
    former lawyers.
    After reviewing all the media articles and newscasts
    relating to Johnsen’s case, the court observed that there were
    not so many articles pertaining to the case, approximately 30.
    Even Professor Schoenthaler acknowledged that the media
    publicity surrounding Johnsen’s case was “fairly moderate.”
    While a few articles used strong language and speculated
    beyond the facts of Johnsen’s case, the court noted that those
    articles were few and far between, and the court chalked up
    those discrepancies to “sensationalism . . . typical of the TV.”
    Finally, given that most of the coverage occurred nearly
    two years before Johnsen’s trial, the court noted that the
    coverage was temporally limited and had largely subsided “over
    the passage of time.” This conclusion was further bolstered by
    the trial court’s observation, in response to Johnsen’s request for
    additional peremptory challenges during voir dire, that few
    jurors had even heard of the case. The court noted “any publicity
    that [the jurors] had received was so attenuated and so long ago
    that it didn’t have any effect at all.”
    Substantial evidence supports the trial court’s factual
    findings. Over a two-year period, there were a few dozen news
    articles published about Johnsen’s case, and most were written
    nearly two years prior to Johnsen’s trial. As we have recognized,
    “[t]he passage of time ordinarily blunts the prejudicial impact of
    pretrial publicity.” (People v. McCurdy (2014) 
    59 Cal.4th 1063
    , 1077; see People v. Bolin (1998) 
    18 Cal.4th 297
    , 314 [“the
    effect of the publicity” was less “substantial . . . after an
    11-month interim” between the coverage and the defendant’s
    32
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    trial]; People v. Ramirez (2006) 
    39 Cal.4th 398
    , 434 (Ramirez)
    [“passage of more than a year from the time of the extensive
    media coverage served to attenuate any possible prejudice”].) It
    is also true that strong language appeared in some articles. But
    their characterizations were not disproportionate to the facts
    and circumstances of the crimes. (People v. Suff (2014) 
    58 Cal.4th 1013
    , 1048 [“ ‘Media coverage is not biased or
    inflammatory simply because it recounts the inherently
    disturbing circumstances of the case.’ ”].)
    Moreover, the trial court took appropriate steps to avoid
    prejudicial pretrial media coverage. Media reports conveying
    dramatic facts that would not be admissible in court may
    inflame potential jurors and render a future trial in the county
    unfair. (See Williams v. Superior Court (1983) 
    34 Cal.3d 584
    ,
    592 [media coverage of defendant’s charges of burglary and
    assault with a deadly weapon, which were later dismissed,
    “could nevertheless have inflamed potential jurors”].) Prejudice
    may also arise from media reports that suggest the defendant
    committed the offense. (See Martinez v. Superior Court (1981)
    
    29 Cal.3d 574
    , 579–580) [finding potentially prejudicial an
    article discussing a witness’s invocation of the 5th Amend.
    during a codefendant’s trial and describing the witness’s
    admission to being defendant’s partner in charged crimes and
    disposing of weapons].) Such media coverage, especially when
    widespread or occurring close in time to jury selection, “can
    dangerously lead to prejudgment by the reader or listener of the
    news coverage” and so generally “weigh[s] heavily” in favor of
    changing venue. (Williams, at p. 591.) The trial court largely
    avoided such pretrial publicity by, for example, excluding the
    press from the suppression hearing on Holland’s testimony and
    Johnsen’s confession to Holland.
    33
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    Next, we turn to the third factor, the size of the
    community. “The size of the community is important because in
    a small rural community, a major crime is likely to be embedded
    in the public consciousness more deeply and for a longer time
    than in a populous urban area.” (People v. Coleman (1989) 
    48 Cal.3d 112
    , 134; see Rideau v. Louisiana (1963) 
    373 U.S. 723
    ,
    724, 726 [finding denial of venue change violated due process
    where a film of the defendant admitting to various offenses aired
    three times in a parish (similar to a county) with a population of
    150,000 and was viewed by 24,000, 53,000, and 29,000 people];
    People v. Duong (2020) 
    10 Cal.5th 36
    , 50 [“ ‘populous
    metropolitan character of the community [can] dissipate[] the
    impact of pretrial publicity’ ”].) The trial court found that the
    size of Stanislaus County did not weigh in favor of Johnsen’s
    venue change motion. The parties stipulated that at the time of
    trial, the county was home to “405,000 people . . . . It’s not the
    largest county in California and it’s not the smallest.” In People
    v. Vieira (2005) 
    35 Cal.4th 264
    , we held that the size of
    Stanislaus County alone did not weigh in favor of a venue
    change at the time of another defendant’s trial in the 1990s. (Id.
    at pp. 280–283 [finding that the size of Stanislaus County, with
    a population of approximately 370,000 according to the 1990
    census, did not compel a venue change].) When Johnsen’s trial
    took place in 1994, the county’s population had risen by 35,000.
    (Ibid.) In light of these data, substantial evidence supports the
    court’s finding.
    As for Johnsen’s social status, the court observed that
    “[t]here’s no evidence that [Johnsen] was well-known in his
    community or a public figure or that he grew up in Modesto and
    lots of people know him, whether he went to school here or high
    school or anything of that nature.” The absence of any
    34
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    reputation in Modesto renders Johnsen’s social status a
    “ ‘neutral factor[].’ ” (Famalaro, supra, 52 Cal.4th at p. 23.) Nor
    does the social status of the victims favor venue change.
    Johnsen presented no evidence showing the Braggs were known
    in Stanislaus County. In fact, the record shows that they were
    Las Vegas residents who visited Rudy in Modesto for only a
    week annually. Since “[n]either defendant nor the victim[] w[as]
    known to the public prior to the crimes and defendant’s arrest,”
    their relative obscurity properly weighed against venue change.
    (Ramirez, supra, 39 Cal.4th at p. 434.)
    In sum, although substantial evidence supports the trial
    court’s findings that the nature and gravity of Johnsen’s crimes
    favored Johnsen’s motion to change venue, all the other factors
    weighed against his motion. Reviewing the legal question de
    novo based on the factors above, we conclude Johnsen has not
    shown a reasonable likelihood that a fair trial could not be had
    in Stanislaus County at the time of his motion. The trial court
    did not err in rejecting his motion.
    B. Admission of Jail Informant Testimony
    Johnsen alleges the incriminating statements elicited by
    Holland outside the presence of Johnsen’s counsel violated his
    right to counsel under the Sixth Amendment and article I,
    section 15 of the California Constitution.
    1. Background
    Johnsen was arrested on March 26, 1992. A few days
    later, on March 30, the prosecutor filed a complaint against
    Johnsen, charging him with murder with special circumstances,
    attempted murder, robbery, and burglary. The charges in the
    information pertained exclusively to the crimes at Rudy’s home;
    35
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    none of the allegations were associated with Holloway’s death in
    San Diego.
    From June to August 1992, Johnsen was awaiting trial in
    a jail cell adjacent to Holland’s. Holland had been previously
    convicted of various forgery and counterfeiting offenses in
    federal court, and he had ongoing state criminal proceedings
    alleging forgery and auto theft. According to his testimony,
    Holland had no prior history of “giv[ing] any information to law
    enforcement officials of any type.”
    Holland testified that Johnsen, while incarcerated,
    solicited his fellow inmates to murder Landrum and Landrum’s
    girlfriend, claiming that Landrum was framing him for
    Juanita’s murder. Thinking it would “put an end” to Johnsen’s
    solicitation and “get him to shut up,” Holland pretended that he
    knew of a “colonel in San Diego” who would eliminate Johnsen’s
    targets in return for a sizable fee. Johnsen named a list of
    people he wanted the “colonel” to kill, including Landrum’s
    girlfriend, mother, and uncle as well as Landrum. Johnsen also
    demanded that Detective Grogan, Officer Vaugh, Thorne, and
    Lee be eliminated. Johnsen outlined how he wanted them all to
    be killed.
    As collateral, Johnsen offered to prepare a written
    confession detailing his involvement in Holloway’s murder in
    San Diego. Holland initially rejected this proposal. Johnsen
    then offered to reveal his involvement in the crimes at Rudy’s
    home, which Holland accepted. From that point forward,
    Johnsen described his crimes against the Braggs in 35 detailed
    notes responding to Holland’s extensive questioning. Johnsen
    eventually also told Holland about “how he ended up being
    36
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    involved in killing his girlfriend and his unborn child” a year
    earlier.
    Johnsen’s admissions worried Holland. Holland was
    particularly perturbed by Johnsen’s lack of motive for killing the
    Braggs. Johnsen told Holland he tried to kill them “because he
    wanted to see if he could get away with killing somebody.”
    Because of his concerns that Johnsen might “get off” and kill
    others, Holland asked his attorney to convey all the information
    he had learned to the district attorney. At that time, Holland
    insisted he did not want “anything” in return, but he also did
    not want to testify at trial because that would put him at risk
    while incarcerated.
    On June 26, Holland’s attorney arranged a tape-recorded
    meeting with District Attorney Investigator Antone. Antone
    told Holland that he understood Holland “may want to work a
    deal or something along those lines.” Antone said he “was
    definitely interested” in any information that Holland had to
    offer and that he could guarantee Holland would not be
    prosecuted for anything he disclosed. However, Antone also
    clarified that the district attorney would make no promises for
    Holland’s cooperation. Holland disclosed details to Antone
    about the crimes at Rudy’s home, including Johnsen’s motive for
    killing Juanita and Johnsen’s solicitation of fellow inmates.
    Antone reminded Holland, “I’m not asking you to be a police
    agent and do these things for me,” to which Holland responded:
    “Oh, I do this on my own.”
    Holland then told Antone that Johnsen had mentioned
    being involved in a San Diego murder last year and that he
    expected Johnsen to reveal his role in that crime later that
    evening. Antone emphasized it was up to Holland whether he
    37
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    decided to inquire into the San Diego murder, saying, “I don’t
    want get [sic] anything construed . . . where at some point in
    time you come back and says, well I only did it for, cause Antone,
    you know . . . said it would be okay.” Holland acknowledged that
    he was not planning to ask Johnsen on behalf of the district
    attorney and that he just wanted to know he would not be
    prosecuted for lying to Johnsen. Antone confirmed that the
    district attorney would not prosecute him for lying to Johnsen.
    On July 3, Holland met with Antone without counsel. At
    this tape-recorded meeting, Holland wanted assurances that a
    leniency deal would be forthcoming. Antone explained that the
    process of even arranging such a deal would require
    coordination between multiple counties given the charges
    pending against Holland, and Antone refused to say if any deal
    was in the works. Holland told Antone he had convinced
    Johnsen to write several incriminating notes, and Holland was
    confident he could persuade Johnsen to prepare a signed
    confession detailing “exactly what happened” at Rudy’s home.
    Holland insisted that if he were to hand over that information
    to convict Johnsen, it would only be used if he got a deal. Antone
    left the room to confer with the deputy district attorney. Upon
    his return, Antone refused to enter into any agreement, even
    with a signed written confession.
    In August, Holland called Antone to tell him that Johnsen
    had accused Holland of being a snitch. To protect Holland from
    potential retribution, the district attorney arranged for Holland
    to be moved from the Stanislaus County jail to the San Joaquin
    County jail.
    By September, Holland refused to testify because the
    district attorney had still not committed to any leniency
    38
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    agreement. After learning that they had secured a warrant to
    search his jail cell, Holland promised to testify at trial about his
    jailhouse conversations with Johnsen, all the notes they
    exchanged, as well as Johnsen’s written confessions. On
    September 4, Holland’s jail cell was searched; all of Johnsen’s
    notes, including his confessions, and Holland’s handwritten
    copies were confiscated and booked into evidence. Holland had
    originally prepared “word for word” copies of Johnsen’s notes so
    he could show Antone the useful information contained therein
    without handing over Johnsen’s actual confessions until he
    received a deal.
    Before trial, Johnsen moved to suppress Holland’s
    testimony, alleging that Holland was a government agent under
    Antone’s direction and elicited inculpatory statements from
    Johnsen about his arraigned offenses in violation of the Sixth
    Amendment. During the suppression hearing, the court asked
    Holland if “anyone from law enforcement t[old him] to continue
    to gather information from [Johnsen].”        Holland replied:
    “Never.” Holland emphasized, “No one ever asked me to get
    information on anything. I did this all on my own.”
    In the end, the court observed, “Antone indicated he was
    interested” in what Holland had to share regarding Johnsen’s
    case, but he never “instruct[ed] [Holland] to elicit the
    information” and he never promised anything in return.
    Finding that neither of Holland’s meetings with Antone on June
    26 and July 3 rendered him a government agent under the Sixth
    Amendment, the court denied Johnsen’s motion to suppress.
    Given their comprehensive detail, Holland’s testimony and the
    incriminating notes Johnsen prepared became the cornerstone
    of the prosecution’s case. After trial, the district attorney
    39
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    arranged for Holland’s state sentence to run concurrently with
    his federal sentence.
    2. Discussion
    The Sixth Amendment to the United States Constitution
    guarantees the assistance of counsel during all stages of a
    criminal prosecution. In Massiah v. United States (1964) 
    377 U.S. 201
    , the high court held that once a defendant has been
    charged with any crime, any “government agent[]” who elicits
    incriminating statements from a defendant regarding that
    crime outside the presence of counsel violates this protection.
    (Id. at p. 206.) Statements made under such conditions “are
    inadmissible at a trial on the charges to which the statements
    pertain.” (People v. Dement (2011) 
    53 Cal.4th 1
    , 33, overruled
    on other grounds in People v. Rangel (2016) 
    62 Cal.4th 1192
    .)
    This prohibition on government agents applies equally to law
    enforcement officers and private persons enlisted by the
    government to elicit incriminating statements. “[T]he primary
    concern of the Massiah line of decisions is secret interrogation
    by investigatory techniques that are the equivalent of direct
    police interrogation.” (Kuhlmann v. Wilson (1986) 
    477 U.S. 436
    ,
    459.)
    “A trial court’s ruling on a motion to suppress informant
    testimony is essentially a factual determination, entitled to
    deferential review on appeal.” (People v. Coffman & Marlow
    (2004) 
    34 Cal.4th 1
    , 67 (Coffman).) To prevail, Johnsen must
    show “ ‘that the informant (1) was acting as a government agent,
    i.e., under the direction of the government pursuant to a
    preexisting arrangement, with the expectation of some resulting
    benefit or advantage, and (2) deliberately elicited incriminating
    statements.’ ” (Ibid.; see In re Wilson (1992) 
    3 Cal.4th 945
    , 950.)
    40
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    “Circumstances probative of an agency relationship include the
    government’s having directed the informant to focus upon a
    specific person, such as a cellmate, or having instructed the
    informant as to the specific type of information sought by the
    government.” (In re Neely (1993) 
    6 Cal.4th 901
    , 915 (Neely).)
    Johnsen argues that the court erred in denying his motion
    to suppress Holland’s testimony. He claims that Holland was
    acting as a government agent as early as his June 26 meeting
    with Antone and thus the Sixth Amendment demands
    suppression of any information Holland exacted from Johnsen,
    including his 14-page signed, written confession. There is no
    question that Holland “ ‘deliberately elicited incriminating
    statements’ ” (Coffman, supra, 34 Cal.4th at p. 67) from
    Johnsen, so the merits of Johnsen’s claim turn on whether
    Holland was in fact acting as a government agent when he
    elicited Johnsen’s confession. We conclude he was not.
    “Where the informant is a jailhouse inmate, the [agent
    prong of the] test is not met where law enforcement officials
    merely accept information elicited by the informant-inmate on
    his or her own initiative, with no official promises,
    encouragement, or guidance.” (Neely, supra, 6 Cal.4th at
    p. 915.) Although Johnsen argues that Antone encouraged
    Holland to elicit more incriminating information, his argument
    has no basis in the record before us. Holland testified that he
    primarily told his attorney about Johnsen’s confessions because
    he was worried that Johnsen would avoid prosecution and
    continue to murder others, not because of any desire to negotiate
    a more lenient sentence for himself. During his June 26 meeting
    with Antone, Holland was repeatedly informed that the district
    attorney would accept any useful information Holland had to
    offer about Johnsen’s case but would not make any promises of
    41
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    leniency. (People v. Williams (1988) 
    44 Cal.3d 1127
    , 1141 [“a
    general policy of encouraging inmates to provide useful
    information does not transform them into government agents”].)
    While it is clear that early on Holland recognized
    Johnsen’s confessions were sufficiently valuable that they could
    be leveraged into some deal, Holland also understood he was
    eliciting Johnsen’s confessions “on [his] own” initiative without
    external direction, guidance, or encouragement.            Holland
    acknowledged this when he told Antone, “I do this on my own,”
    and again when he testified in court, “I did this all on my own.”
    (See People v. Fairbank (1997) 
    16 Cal.4th 1223
    , 1247 [“If an
    informant ‘acts on his own initiative,’ even if he interrogates the
    accused, ‘the government may not be said to have deliberately
    elicited the statements.’ ”].) In addition, after each meeting with
    Antone, Holland signed a form clarifying that Holland received
    nothing in return for his disclosures. And unlike a repeat
    informant, Holland had never given authorities information
    about another inmate, so there is no indication that Holland was
    working under a preexisting agreement or continuing practice
    of collaboration with law enforcement. (See, e.g., United States
    v. Henry (1980) 
    447 U.S. 264
    , 270, fn. 7.)
    As the trial court acknowledged, Holland was likely
    motivated in part by “some self-interest . . . in working a deal for
    himself.” Likewise, Antone’s instruction that Holland should
    not consider himself a police agent “can be deemed as
    self-serving.” For this reason, Antone’s statements that Holland
    acted on his own do not, by themselves, establish that no agency
    relationship existed. (See Coffman, 
    supra,
     34 Cal.4th at p. 67
    [noting that a preexisting agreement “need not be explicit or
    formal”]; Rest.3d Agency, § 1.02 com. a, p. 50 [“Although agency
    is a consensual relationship, how the parties to any given
    42
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    relationship label it is not dispositive.        Nor does party
    characterization or nonlegal usage control whether an agent has
    an agency relationship . . . .”].) Rather, we take into account the
    totality of the circumstances, including the possibility that
    attempts to disclaim agency may be self-serving. The trial court
    considered this possibility and weighed it against Holland’s
    “testimony and demeanor,” which suggested he was “ethically
    motivated.” The court also noted that an agency theory
    appeared inconsistent with Holland’s refusal to “give [Antone]
    the information” and the need “to serve a search warrant to get
    it.” The court reasonably concluded that “based on the totality
    of the circumstances in this case” and “focusing on the state’s
    conduct as a whole,” Holland did not act as a government agent.
    The fact that Holland ultimately received leniency in
    return for the information he elicited did not transform him into
    a government agent because the district attorney did not offer a
    leniency deal or even say a deal was in the works until
    September, months after Johnsen had made his incriminating
    statements to Holland. Although the district attorney did
    appear to be back-channeling with other prosecutors’ offices to
    work out a potential deal, there is no evidence that Holland was
    aware of such discussions aside from Antone’s brief comment
    that a deal of that magnitude would require significant
    coordination between various district attorneys’ offices. We
    conclude Holland was not acting as a government agent and that
    the court did not err when it admitted Holland’s testimony about
    Johnsen’s incriminating statements pertaining to his crimes at
    Rudy’s home.
    In addition, Johnsen challenges Holland’s efforts to elicit
    inculpatory statements regarding his role in Holloway’s death.
    This claim also lacks merit. At the time Holland elicited these
    43
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    incriminating statements, Johnsen had not been charged with
    or arraigned on any crimes associated with Holloway’s death.
    The Sixth Amendment protects a defendant’s right to counsel on
    arraigned charges, not unarraigned offenses. (Kirby v. Illinois
    (1972) 
    406 U.S. 682
    , 688–689.) Even assuming the Sixth
    Amendment applied, we find no violation. As discussed,
    Holland elicited all of the incriminating information about
    Holloway’s death from Johnsen on his own accord as a private
    citizen, not as a government agent.
    III. GUILT PHASE
    A. Alleged Instructional Errors
    Johnsen argues the trial court committed reversible error
    by failing to instruct the jury sua sponte on various jury
    instructions with respect to Landrum’s testimony.              In
    particular, Johnsen asserts that because Landrum was an
    accomplice to Johnsen’s crimes, the trial court should have
    advised the jury with CALJIC No. 3.10 [definition of
    accomplice]; CALJIC No. 3.11 [corroboration requirement];
    CALJIC No. 3.18 [accomplice testimony should be viewed with
    distrust]; and CALJIC No. 8.83.3 [corroboration requirement for
    special circumstances]. He also challenges the court’s decision
    to grant defense counsel’s request for the jury to be instructed
    with CALJIC No. 2.11.5 [limitation on discussing why
    coparticipant is not being prosecuted] as well as the court’s
    refusal to give certain special instructions. According to
    Johnsen, these instructional errors violated his rights under the
    Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
    Constitution; article I, sections 7, 15, and 16 of the California
    Constitution; and California law.
    44
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    1. Accomplice Testimony and Corroboration
    Section 1111 bars any conviction predicated on “testimony
    of an accomplice unless it [is] corroborated by such other
    evidence as shall tend to connect the defendant with the
    commission of the offense.” An accomplice is “one who is liable
    to prosecution for the identical offense charged against the
    defendant on trial in the cause in which the testimony of the
    accomplice is given.” (Ibid.) “To be chargeable with an identical
    offense, a witness must be considered a principal under section
    31.” (People v. Lewis (2001) 
    26 Cal.4th 334
    , 368–369 (Lewis); see
    § 31 [defining “principal”].) In other words, there must be
    evidence of that person’s “guilt . . . based on a combination of the
    direct perpetrator’s acts and the aider and abettor’s own acts
    and own mental state.” (People v. McCoy (2001) 
    25 Cal.4th 1111
    ,
    1117, italics omitted.)
    Only when there is “substantial evidence that a witness
    who has implicated the defendant was an accomplice” must the
    trial court instruct on “the principles regarding accomplice
    testimony.” (People v. Houston (2012) 
    54 Cal.4th 1186
    , 1223; see
    Lewis, 
    supra,
     26 Cal.4th at p. 369 [“Substantial evidence is
    ‘evidence sufficient to “deserve consideration by the jury.” ’ ”].)
    “ ‘But if the evidence is insufficient as a matter of law to support
    a finding that a witness is an accomplice, the trial court may
    make that determination and, in that situation, need not
    instruct the jury on accomplice testimony.’ ” (People v. Gonzales
    and Soliz (2011) 
    52 Cal.4th 254
    , 302.)
    The Attorney General contends there is minimal evidence
    Landrum aided and abetted Johnsen’s offenses. According to
    the Attorney General, Landrum was merely an accessory to
    Johnsen’s crimes — i.e., a “person who, after a felony has been
    45
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    committed, harbors, conceals or aids a principal in such felony,
    with the intent that said principal may avoid or escape from
    arrest, trial, conviction or punishment, having knowledge that
    said principal has committed such felony or has been charged
    with such felony or convicted thereof . . . .” (§ 32.) Because an
    accessory is not “liable to prosecution for the identical offense
    charged against the defendant on trial,” an accessory’s
    testimony does not implicate section 1111. (§ 1111; see People
    v. Horton (1995) 
    11 Cal.4th 1068
    , 1113–1114.)
    We agree that the trial court did not err by declining to
    give accomplice instructions.         The trial evidence was
    overwhelmingly oriented toward the theory that Johnsen
    committed the crimes alone. As noted, the jury heard testimony
    that Landrum was at Johnsen’s home the evening before the
    March 1 crimes and that Landrum drove to his mother’s home
    around 9:00 p.m. and spent the night there. Landrum also
    explained how he came to briefly possess the property taken
    from Rudy’s home — namely, Johnsen phoned him from the jail
    and told him to dispose of the stolen property, which Johnsen
    had stored in his own home. Landrum further testified that
    Johnsen tossed Rudy’s key and a ball peen hammer out the car
    window on their drive to San Jose. He also disavowed
    participating in any of the crimes in Rudy’s home, including the
    February burglary where Johnsen tried to enlist Landrum into
    stealing Rudy’s television with him.
    Lee also explained how Landrum’s mother took possession
    of Rudy’s stolen property after Johnsen frantically dropped off a
    paper bag with the stolen goods at Lee’s apartment. The jury
    heard Thorne’s testimony, in which he described notes from
    Johnsen instructing him to frame Landrum for the crimes at
    Rudy’s home.       Although Johnsen accused Landrum of
    46
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    participating in his crimes at Rudy’s home in his earliest two
    accounts to Holland, Johnsen later admitted that he was solely
    responsible. Most importantly, Johnsen’s 14-page handwritten
    and signed confession was admitted into evidence alongside
    Holland’s testimony that Johnsen eventually conceded that he
    had committed all of the crimes on his own.
    In the end, the only evidence at trial that potentially
    connected Landrum to the March 1 crimes were Johnsen’s
    earliest statements to Holland attempting to frame Landrum,
    which he later retracted, and conflicting witness testimony
    about whether Landrum had a bandage on his hand on March
    1. Landrum testified against Johnsen pursuant to a grant of
    immunity on these accessory offenses. He was never charged or
    convicted of any principal offenses associated with the crimes
    that took place in Rudy’s home. We therefore conclude that
    Johnsen’s claim that the court failed to instruct the jury to view
    Landrum’s testimony with skepticism lacks merit.
    2. CALJIC No. 2.11.5 and Special Jury Instruction
    No. 28
    Before trial, Johnsen’s counsel moved to have the jury
    instructed on CALJIC No. 2.11.5 and special instruction No. 28.
    CALJIC No. 2.11.5 advises the jury to neither discuss nor
    consider why other individuals are not also being prosecuted.
    special instruction No. 28 would have modified CALJIC No.
    2.11.5 to “permit the jurors to consider evidence of ‘the guilt of
    any other person’ in determining whether there was reasonable
    doubt of the appellant’s guilt.” At the time of Johnsen’s request,
    the court briefly considered the special instruction in
    conjunction with CALJIC No. 2.11.5 and observed that the
    relevance of the special instruction would depend on how
    Johnsen presented his theory of the case. Accordingly, the court
    47
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    placed the special instruction in its “possible” file for
    consideration “[d]epending on how the argument goes.”
    After closing arguments, the court instructed the jury
    using the unmodified version of CALJIC No. 2.11.5 at the
    request of Johnsen’s counsel. Johnsen did not reintroduce his
    request for special instruction No. 28, and the court did not
    revisit it or rule on it one way or another. The court scribbled
    on the special instruction that it had been “[g]iven elsewhere.”
    On appeal, Johnsen now contends that the trial court erred both
    by providing CALJIC No. 2.11.5 and by refusing to provide
    special instruction No. 28.
    Johnsen begins by arguing that he did not forfeit his
    CALJIC No. 2.11.5 claim by requesting the instruction and by
    not asking the court to limit its application. Even assuming
    Johnsen’s argument was not forfeited, we find that the
    instruction was not erroneous. It is well established that
    CALJIC No. 2.11.5 “should be clarified or not given when a
    nonprosecuted participant testifies at trial.” (People v. Crew
    (2003) 
    31 Cal.4th 822
    , 845 (Crew).) Whether a person “ ‘was or
    may have been involved in the crime[s]’ for the purposes of
    CALJIC No. 2.11.5 is a ‘separate issue’ [citation] from . . .
    whether [he or she] was an accomplice.” (People v. Williams
    (1997) 
    16 Cal.4th 153
    , 226.) On the other hand, this instruction
    “is not error when it is given together with other instructions
    that assist the jury in assessing the credibility of witnesses.”
    (Crew, at p. 845)
    The Attorney General observes that in Crew, we upheld a
    conviction where the jury was instructed with CALJIC No.
    2.11.5 because the jury also received instructions to consider
    “any evidence of witness credibility, including the existence or
    48
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    nonexistence of a bias, interest, or other motive (CALJIC No.
    2.20), and to consider the instructions as a whole (CALJIC No.
    1.01).” (Crew, 
    supra,
     31 Cal.4th at p. 845.) Further, during
    closing arguments in Crew, defense counsel raised the
    unprosecuted coparticipant’s immunity agreement as a ground
    to discount his testimony. (Ibid.) Given these considerations,
    we concluded in Crew that the trial court’s inclusion of CALJIC
    No. 2.11.5 was not error.
    Similar circumstances were present here. Not only was
    the jury advised with both CALJIC No. 2.20 and CALJIC No.
    1.01, but Johnsen’s counsel also warned the jury during closing
    arguments that “Mr. Landrum has been given immunity from
    prosecution for stolen property and drug offenses. This is some
    evidence of motive of bias to testify in this case.” Moreover, the
    defense’s case largely rested on the theory that Landrum, not
    Johnsen, committed the crimes at Rudy’s home. Central to this
    theory were Johnsen’s efforts to show Landrum’s mother was
    Landrum’s only alibi the night of February 29 and the morning
    of March 1, and that he variously handled the goods taken from
    Rudy’s home. At the same time, the defense sought to
    undermine Landrum’s credibility by (1) arguing his testimony
    was unreliable because he had ingested “crank” the night before
    and (2) introducing testimony that Landrum had a bandaged
    wound on his hand during the Johnsens’ move on March 1. As
    a result, notwithstanding CALJIC No. 2.11.5, the jury received
    other instructions to assist them in evaluating Landrum’s
    credibility as a nonprosecuted coparticipant. Consequently,
    Johnsen’s claim lacks merit.
    Johnsen has also failed to establish instructional error
    with respect to special instruction No. 28. There is no precedent
    that compels the trial court to instruct the jury specifically on
    49
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    the reasonable doubt standard in the context of third party
    culpability when the jury has already received a general
    instruction on the reasonable doubt standard. (See People v.
    Gutierrez (2009) 
    45 Cal.4th 789
    , 825 [“because the jury could
    have acquitted defendant had it believed that a third party was
    responsible for [the victim’s] death, no third party culpability
    instruction was necessary”].)
    3. Special Jury Instruction No. 14
    Johnsen also challenges the court’s denial of related
    defense-requested instructions, which he asserts “were
    necessary to guide the jury’s consideration of Landrum’s
    testimony” and of third party culpability.
    Special instruction No 14 read: “The testimony of a
    witness who provides evidence against a defendant for
    immunity from punishment, or for any other personal
    advantage, must be examined to determine whether this
    testimony has been affected by the grant of immunity, by
    personal interest, by expectation of reward, or by prejudice
    against the defendant.” In denying special instruction No. 14,
    the court found that it would be duplicative of CALJIC No. 2.20.
    As noted, CALJIC No. 2.20 permits the jury to consider any
    evidence of witness credibility, including “[t]he existence or
    nonexistence of a bias, interest, or other motive.” (CALJIC No.
    2.20.) The Attorney General reiterates special instruction No.
    14 would have been redundant. We agree. Having been
    instructed with CALJIC No. 2.20, the jury was already aware
    that it could consider any “bias, interest, or other motive” in
    assessing witness credibility, including a grant of immunity.
    Johnsen claims our reasoning in People v. Hunter (1989)
    
    49 Cal.3d 957
     supports his position. But in Hunter, we found no
    50
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    error in the court’s refusal to instruct the jury to view an
    immunized witness’s testimony with “ ‘greater care and caution’
    than the ‘testimony of an ordinary witness.’ ” (Id. at p. 976.) “No
    California authority supports [Johnsen’s] contention that an
    immunized witness, unlike an informant, is so analogous to an
    accomplice that a trial court must, upon request, give cautionary
    instructions as to the trustworthiness of immunized witness
    testimony.” (Id. at p. 977.)
    B. DNA Evidence Chain of Custody
    Johnsen contends the trial court improperly rejected his
    motion to exclude the expert testimony of molecular biologist
    Julie Cooper. During trial, Cooper testified about her analysis
    of DNA extracted from hair found on pantyhose in Rudy’s home.
    Before Cooper analyzed the hair, it was accidentally broken into
    two hair fragments at the Department of Justice’s crime lab in
    Modesto. On appeal, Johnsen asserts the trial court abused its
    discretion by finding that the hair’s chain of custody had been
    established with reasonable certainty.
    1. Background
    Several prosecution witnesses testified regarding the
    hair’s chain of custody from its initial discovery until the point
    where the DNA analysis dissolved it. Detective Buehler first
    discovered a pair of pantyhose on an armchair in Rudy’s living
    room. The pantyhose were delivered to the state Department of
    Justice’s lab in Modesto. There, criminalist Dr. Richard Lynd
    discovered a single four-inch blond hair inside. Through
    microscopic analysis, Dr. Lynd concluded the hair came from a
    Caucasian person’s head, which may have been Johnsen’s, given
    similarities in color, length, texture, and microscopic
    characteristics. Dr. Lynd’s analysis ruled out Juanita, Rudy,
    51
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    and Landrum as possible sources of the hair. Later, the hair
    was brought to a Stockton lab, where it was analyzed. The
    criminalist sealed the hair in a plastic petri dish with tape and
    returned it to the Modesto lab.
    On June 3, 1992, Dr. Lynd unsealed the petri dish to
    photograph the hair. While doing so, he found the hair “taped
    to the plastic container.” In his efforts “to get [the hair] out,” Dr.
    Lynd inadvertently “broke the hair in two pieces.”                 He
    photographed the evidence on a slide and returned it to storage.
    Two weeks later, Dr. Lynd retrieved the evidence to take
    another round of photographs. He then “removed the hair from
    the slide, rinsed the mounting media off of the hair and
    packaged it for shipping for the DNA analysis.” Dr. Lynd did
    not normally wear a mask, hairnet, or gloves while working.
    On June 22, 1992, Detective Bill Grogan transported the
    hair evidence to Cellmark Diagnostics, a DNA testing lab.
    Cooper, a Cellmark molecular biologist, opened the container to
    find “two very fine blond hairs” and “nothing else.” Cooper
    testified that she “did not examine both ends of both pieces of
    hair [with] more than just a quick glance,” but she thought “at
    least one of those hairs did have an end which looked thicker
    and could have been a pulled root.”
    Three months later, Cooper again visually examined the
    hair. She noticed that the “[t]wo pieces of hair . . . looked like
    they had an end that breathed out a bit which, from my
    experience, I know that hairs usually with a root, that’s the
    fatter end.” She said she was simply making a lay observation
    because Cellmark is “not a hair analyzing laboratory.” She
    clipped what appeared to be the fatter ends off the hair and
    placed them into a single tube for PCR analysis. This process
    52
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    consumed the hair pieces altogether. As a result, the jury heard
    Cooper’s testimony on the results of her DNA analysis, but the
    hair fragments were never admitted into evidence at trial.
    Upon hearing Cooper’s testimony, Johnsen’s counsel did
    not move to strike her findings based on inadequate chain of
    custody or on any other ground. After hearing testimony on the
    hair’s chain of custody, the court credited Dr. Lynd’s explanation
    that he accidentally broke a single hair into two when
    extricating it from the tape as adequate justification for the two
    hair pieces. The court also noted that Cooper’s subsequent
    impression that “there were two hairs [that] both had roots” was
    easily explained because her perception was based on mere
    visual observation that both hairs “looked like they had an end
    that breathed out a bit” without actually confirming that they
    were in fact root ends. The court accepted Cooper’s assertion
    that she “never looked at [the hairs] closely.” In the end, the
    court found there was only “bare speculation that it’s not the
    same hair” and that the speculation should bear on the weight
    of the evidence, not admissibility.
    2. Discussion
    Johnsen argues that the apparent presence of root ends on
    both hairs is a “critical anomaly” and “indicat[es] that the hair
    evidence had been altered either by contamination or by
    substitution/addition of one or both of the hair fragments.” The
    crux of Johnsen’s claim is that it is factually impossible to break
    a single hair with one root end into two hairs each with root
    ends. Given this, Johnsen complains that the presence of two
    hairs each with root ends is clear evidence of tampering.
    Although Johnsen’s counsel expressed general concerns
    about the hair’s chain of custody at trial, Johnsen never objected
    53
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    to Cooper’s testimony on the record before or after it was
    introduced. Thus, the Attorney General asserts, Johnsen’s
    claim is forfeited. Johnsen concedes that the record does not
    show his counsel moved to strike Cooper’s testimony at any
    point. Nevertheless, Johnsen asserts his trial counsel rendered
    ineffective assistance (1) by eliciting testimony from Cooper
    reiterating that Johnsen’s DQ-Alpha type matched the blond
    hair found in the pantyhose and (2) by failing to have Cooper’s
    testimony stricken altogether.
    Even assuming Johnsen’s claim is not forfeited, we reject
    it on the merits. We clarified in People v. Riser (1956) 
    47 Cal.2d 566
     (Riser), that “the party relying on an expert analysis of
    demonstrative evidence must show that it is in fact the evidence
    found at the scene of the crime, and that between receipt and
    analysis there has been no substitution or tampering . . . .” (Id.
    at p. 580.) There, we “set[] forth the rules for establishing chain
    of custody: ‘The burden on the party offering the evidence is to
    show to the satisfaction of the trial court that, taking all the
    circumstances into account including the ease or difficulty with
    which the particular evidence could have been altered, it is
    reasonably certain that there was no alteration. [¶] The
    requirement of reasonable certainty is not met when some vital
    link in the chain of possession is not accounted for, because then
    it is as likely as not that the evidence analyzed was not the
    evidence originally received. Left to such speculation the court
    must exclude the evidence. [Citations.] Conversely, when it is
    the barest speculation that there was tampering, it is proper to
    admit the evidence and let what doubt remains go to its
    weight.’ ” (People v. Diaz (1992) 
    3 Cal.4th 495
    , 559 (Diaz).)
    The trial court acted within its discretion when it held the
    district attorney had properly accounted for the hair’s chain of
    54
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    custody and thus Cooper’s testimony offered only “the barest
    speculation that there was tampering.” (Riser, supra, 47 Cal.2d
    at p. 581.) By furnishing firsthand testimony from Dr. Lynd
    that he accidentally broke one hair into two pieces at the
    Modesto lab, the prosecution made “at least a prima facie
    showing that the evidence had not been tampered with,” at least
    not in any way that could alter the subsequent forensic analysis.
    (People v. Williams (1989) 
    48 Cal.3d 1112
    , 1135.) Aside from
    Cooper’s testimony that she may have seen two root ends, there
    is no evidence supporting Johnsen’s theory that the hair was
    tampered with. The trial court properly held that testimony
    about the hair was admissible and that the discrepancies, if any,
    raised by Cooper’s visual perception go to the weight of that
    evidence. (Diaz, supra, 3 Cal.4th at p. 559.)
    C. Alleged Error in Stating Reasonable Doubt
    Standard
    Johnsen alleges that statements made by the prosecution
    and defense diluted the reasonable doubt standard and shifted
    the burden of proof to Johnsen. He complains that this error
    violated his Fifth, Sixth, Eighth, and Fourteenth Amendment
    rights and corresponding rights in the state Constitution.
    1. Background
    In his opening argument, the district attorney recited the
    jury instruction defining reasonable doubt (CALJIC No. 2.90),
    and he then informed the jury:
    “[H]aving that definition which the Court will
    read to you in mind, you can see that reasonable
    doubt doesn’t mean a mere possible doubt. It does
    not mean proof to an absolute certainly [sic] and it
    doesn’t mean proof beyond a shadow of a doubt.
    55
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    “I’m going to suggest to you that, based on this
    definition of reasonable doubt, if any one of you feels
    that he or she might have a reasonable doubt, he or
    she should be able to do three things. One, they
    should be able to put the doubt into words; two, they
    should be able to point to something in the evidence
    that makes them have that doubt; and, three, that
    juror should be able to convince his or her fellow
    jurors that the doubt is reasonable.
    “If you can’t do all three of these things then I
    suggest to you, ladies and gentlemen, the doubt that
    you are contemplating is the imaginary or mere
    possible doubt that is referred to in the Court’s
    instruction.”
    Johnsen’s counsel did not object at the time to the
    prosecution’s characterization of the reasonable doubt standard.
    During closing argument, however, defense counsel
    directly confronted the prosecutor’s opening comments:
    “[The prosecutor] talked about a method to decide
    whether or not any doubt that you might have on
    any particular fact is reasonable.
    “And I agree with the first two steps that he said
    to take, and that number one step is articulate the
    doubt. If you have a doubt that you can talk about,
    if you can put it into words, if you can articulate it,
    it may be reasonable doubt. If you can point to a
    particular piece of evidence to support that doubt
    and say, “I don’t feel good about this evidence and it
    makes me doubt which it’s offered to prove,” those
    are two steps that you should do.
    “However, [the prosecutor] is wrong on the third
    step. You’re not required and you don’t need to be
    able to convince your fellow jurors regarding
    whether or not the doubt is reasonable. Your job is
    not to convince others. Your job is to deliberate.
    56
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    Your job is to deliberate and decide in your own mind
    whether each piece of evidence is reasonable,
    whether it’s unreasonable, what it means, what it
    doesn’t mean. And if you have doubt, you’re entitled
    to retain that doubt and to consider it a reasonable
    doubt, even though you cannot convince another
    juror or the rest of your fellow jurors about that
    particular issue.
    ...
    “I can’t articulate for you or I can’t say for you
    what is reasonable and what is unreasonable but I
    think if you can state it in your mind, if you can talk
    about it to someone else and point to a piece of
    evidence that you think is crucial and critical to the
    prosecution’s case that you have a doubt about, that
    creates in your mind a doubt which is reasonable,
    and you can talk about[,] then you have not been
    convinced beyond a reasonable doubt, to a moral
    certainty.
    “It’s not necessary, as I said before, it’s not
    necessary that you’re able to convince anybody else
    in this jury. Your duty is to deliberate, which means
    to discuss, listen with an open mind, state your
    opinion, listen to other people’s opinions. But if you
    believe something to be such that it creates a doubt
    in your mind and you can’t get rid of that doubt then
    you don’t have to change your mind. You’re entitled
    to maintain that opinion as long as you deliberate
    fairly.”
    During his rebuttal, the prosecutor clarified:
    “Reasonable doubt is the burden of proof which
    the People shoulder. And the operative word is
    ‘reasonable.’ If you don’t have any method of
    assessing whether or not any doubt that you have is
    reasonable or unreasonable, then the instruction is
    meaningless. The concept is useless.
    57
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    “And you have to test the reasonableness of any
    doubt. And one of the ways you do that is to discuss
    any perceived doubt with your fellow jurors, put it
    into words, test it, and see if anybody else agrees
    with you that that is a reasonable doubt. That’s how
    you test it. There’s no other way to assess any doubt.
    There’s no way to tell whether a doubt is fanciful,
    imaginary, or just a mere possible doubt.”
    After closing arguments, the court instructed the jury with
    CALJIC No 2.90. As given, the instruction provided:
    “A defendant in a criminal action is presumed to
    be innocent until the contrary is proved, and in the
    case of a reasonable doubt whether guilt is
    satisfactorily shown, the defendant is entitled to a
    verdict of not guilty. This presumption places upon
    the People the burden of proving the defendant’s
    guilt beyond a reasonable doubt.
    “Reasonable doubt is defined as follows: It is not
    a mere possible doubt because everything relating to
    human affairs and depending on moral evidence is
    open to some possible or imaginary doubt. It is the
    state of the case which, after the entire comparison
    and consideration of all the evidence, leaves the
    mind of the jurors in that condition that they cannot
    say they feel an abiding conviction to a moral
    certainty of the truth of the charge.”
    The court also instructed the jury with CALJIC No. 17.40.
    As given, that instruction provided:
    “The People and the defendant are entitled to the
    individual opinion of each juror.
    “Each of you must consider the evidence for the
    purpose of reaching a verdict if you can do so. Each
    of you must decide the case for yourself, but should
    do so only after discussing the evidence and
    instructions with the other jurors.
    58
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    “Do not hesitate to change an opinion if you are
    convinced it is wrong. However, do not decide any
    question in a particular way because a majority of
    the jurors, or any of them, favor such a decision.”
    2. Discussion
    As an initial matter, the Attorney General argues that
    Johnsen forfeited his challenge to the alleged misconduct. “It is
    well settled that making a timely and specific objection at trial,
    and requesting the jury be admonished (if jury is not waived), is
    a necessary prerequisite to preserve a claim of prosecutorial
    misconduct for appeal.” (People v. Seumanu (2015) 
    61 Cal.4th 1293
    , 1328 (Seumanu).) Johnsen did not object to the district
    attorney’s characterization of the reasonable doubt standard.
    While failure to object would not forfeit his claim when doing so
    would have been futile or an admonition would be insufficient to
    cure the purported harm, the record does not suggest that a
    timely objection would be futile or insufficient. (People v.
    Centeno (2014) 
    60 Cal.4th 659
    , 674 (Centeno).) Thus, Johnsen
    has forfeited this challenge on appeal.
    Johnsen claims that his counsel rendered ineffective
    assistance by failing to object. To demonstrate ineffective
    assistance of counsel, Johnsen “must show that counsel’s
    performance was deficient, and that the deficiency prejudiced
    the defense.” (Wiggins v. Smith (2003) 
    539 U.S. 510
    , 521, citing
    Strickland v. Washington (1984) 
    466 U.S. 668
    , 687 (Strickland).)
    On direct appeal, a finding of deficient performance is
    warranted where “(1) the record affirmatively discloses counsel
    had no rational tactical purpose for the challenged act or
    omission, (2) counsel was asked for a reason and failed to
    provide one, or (3) there simply could be no satisfactory
    explanation.” (People v. Mai (2013) 
    57 Cal.4th 986
    , 1009.)
    59
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    “[W]here counsel’s trial tactics or strategic reasons for
    challenged decisions do not appear on the record, we will not
    find ineffective assistance of counsel on appeal unless there
    could be no conceivable reason for counsel’s acts or omissions.”
    (People v. Weaver (2001) 
    26 Cal.4th 876
    , 926.)
    We have said that “the decision . . . whether to object to
    comments made by the prosecutor in closing argument is a
    highly tactical one.” (People v. Padilla (1995) 
    11 Cal.4th 891
    ,
    942.) Instead of registering a contemporaneous objection,
    defense counsel appears to have made a tactical choice to
    undermine the prosecutor in his own closing remarks. In
    Centeno, we held that there was “no reasonable tactical purpose”
    for defense counsel’s failure to object to the prosecutor’s use of
    an improper hypothetical that was reasonably likely to have
    misled the jury regarding the reasonable doubt standard.
    (Centeno, supra, 60 Cal.4th at p. 676.) The prosecutor in
    Centeno mischaracterized the reasonable doubt standard for the
    first time during rebuttal arguments.          By contrast, the
    prosecutor in this case made nearly identical misstatements
    during both his opening and rebuttal arguments. Defense
    counsel may have made a strategic decision to rely on the
    counterarguments he had already made during his closing
    statement rather than objecting to the prosecutor’s rebuttal
    statements.     Such a tactical choice was not objectively
    unreasonable under Strickland, supra, 
    466 U.S. 668
    .
    Even assuming Johnsen did not forfeit the claim of
    prosecutorial misconduct, his allegations do not warrant
    reversal. To determine whether a prosecutor has committed
    reversible misconduct in this context, we examine (1) whether it
    was reasonably likely that the prosecutor’s statements misled
    the jury on reasonable doubt and (2) whether there is “a
    60
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    reasonable probability that the prosecutor’s argument caused
    one or more jurors to convict defendant based on a lesser
    standard than proof beyond a reasonable doubt.” (Centeno,
    supra, 60 Cal.4th at pp. 674, 677.)
    We find that the prosecutor’s statements were reasonably
    likely to mislead the jury. As to the prosecutor’s statement that
    the reasonable doubt standard requires jurors “to point to
    something in the evidence that makes them have that doubt,”
    we found a similar mischaracterization to be misconduct in
    People v. Hill (1998) 
    17 Cal.4th 800
     (Hill). There, the prosecutor
    “addressed the concept of reasonable doubt, stating: ‘it must be
    reasonable. It’s not all possible doubt. Actually, very simply, it
    means, you know, you have to have a reason for this doubt. There
    has to be some evidence on which to base a doubt.’ ” (Id. at p. 831,
    first italics added.) Over a defense objection, the court allowed
    the prosecutor to continue, at which point she informed the jury:
    “ ‘There must be some evidence from which there is a reason for
    a doubt. You can’t say, well, one of the attorneys said so.’ ”
    (Ibid., italics added by Hill.) While we observed those remarks
    were “somewhat ambiguous,” (ibid.) we concluded that the
    prosecutor had engaged in misconduct because it was
    “reasonably likely” the jury understood this comment “to mean
    defendant had the burden of producing evidence to demonstrate
    a reasonable doubt of his guilt” (id. at p. 832). We ultimately
    reversed Hill’s judgment due to a litany of misconduct, including
    error in diluting the reasonable doubt standard. (Id. at p. 815.)
    Here, as in Hill, it is reasonable to construe the
    prosecutor’s remarks — “[t]here has to be some evidence on
    which to base a doubt” — to preclude jurors from having
    reasonable doubt solely based on the insufficiency of the
    prosecution’s evidence. (See Hill, supra,17 Cal.4th at p. 832;
    61
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    People v. Young (2005) 
    34 Cal.4th 1149
    , 1195–1196 [prosecutor
    “may not suggest that ‘a defendant has a duty or burden to
    produce evidence, or a duty or burden to prove his or her
    innocence’ ”].)   The prosecutor’s remarks also erroneously
    suggest that a juror is precluded from considering factors such
    as common sense and life experience to form a reasonable doubt.
    The fact that defense counsel not only did not object to the
    misstatement but affirmatively agreed with it heightened the
    likelihood that the misstatement misled the jury.
    The prosecutor also misstated the law by advising the jury
    that in evaluating whether a perceived doubt is reasonable, a
    “juror should be able to convince his or her fellow jurors that the
    doubt is reasonable.” It is misconduct to “ ‘attempt to absolve
    the prosecution from its prima facie obligation to overcome
    reasonable doubt on all elements.’ ” (Hill, supra, 17 Cal.4th at
    p. 829.) “Among the essential elements of the right to trial by
    jury are the requirements that a jury in a felony prosecution
    consist of 12 persons and that its verdict be unanimous.” (People
    v. Collins (1976) 
    17 Cal.3d 687
    , 693, superseded by statute on
    another ground as stated in People v. Boyette (2002) 
    29 Cal.4th 381
    , 462, fn. 19.) Embedded in this right is the well-settled
    principle that a single juror may validly hold reasonable doubt
    even if all other jurors disagree. Under such a scenario, the jury
    has not reached a unanimous verdict, and the defendant may
    not be found guilty. (See Ramos v. Louisiana (2020) __ U.S. __,
    __ [
    140 S.Ct. 1390
    , 1395].) Thus, the prosecutor rendered an
    incorrect characterization of the reasonable doubt standard by
    suggesting that any single juror’s personally held doubt cannot
    be “reasonable” unless at least he or she can persuade another
    juror. The Attorney General does not dispute that the
    prosecutor misstated the applicable legal standard.
    62
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    Nevertheless, we conclude that it was not reasonably
    likely that the prosecutor’s misstatements caused one or more
    jurors to convict Johnsen on a standard lower than beyond a
    reasonable doubt. The court provided the jury with correct
    instructions on reasonable doubt and directed the jury to follow
    these instructions in the event of any conflicting statements.
    The court began by instructing the jury with CALJIC No. 1.00,
    which provided in relevant part: “You must accept and follow
    the law as I state it to you, whether or not you agree with the
    law. If anything concerning the law said by the attorneys in
    their arguments or at any other time during the trial conflicts
    with my instructions on the law, you must follow my
    instructions.” The court then instructed with CALJIC No. 2.90,
    which stated that “[a] defendant in a criminal action is
    presumed to be innocent until the contrary is proved . . . . This
    presumption places upon the People the burden of proving the
    defendant’s guilt beyond a reasonable doubt.” This instruction
    clarified that Johnsen is presumed innocent until proven guilty
    and that the prosecutor had the sole obligation to present
    evidence of guilt beyond a reasonable doubt. The court also
    provided CALJIC No. 17.40, which stated that the parties “are
    entitled to the individual opinion of each juror,” that each juror
    “must decide the case for yourself,” and that no juror should
    “decide any question in a particular way because a majority of
    the jurors or any of them favor such a decision.” With this
    instruction, each juror presumably understood that he or she
    was entitled to make his or her own assessment of reasonable
    doubt and that persuading “a majority of the jurors or any of
    them” is not necessary. Defense counsel also stressed to the
    jury: “[I]t’s not necessary that you’re able to convince anybody
    else in this jury,” and “if you believe something to be such that
    63
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    it creates a doubt in your mind and you can’t get rid of that doubt
    then you don’t have to change your mind. You’re entitled to
    maintain that opinion as long as you deliberate fairly.”
    In addition to the prosecutorial misconduct claim, Johnsen
    alleges his counsel rendered ineffective assistance by agreeing
    with the prosecutor’s assertion that jurors must be able to “point
    to something in the evidence” that supports their reasonable
    doubt. We need not decide whether the decision to agree with
    the prosecutor on this point was deficient because, even if it was,
    Johnsen was not prejudiced. (See Strickland, 
    supra,
     466 U.S. at
    p. 697 [“If it is easier to dispose of an ineffectiveness claim on
    the ground of lack of sufficient prejudice . . . that course should
    be followed”].) Just as instructing with CALJIC Nos. 1.00, 2.90
    and 17.40 mitigated any misimpression the prosecutor’s
    misstatements of the reasonable doubt standard would have
    given, it likewise reduced any risk the jury would be misled by
    defense counsel’s similar misstatements.
    In sum, we find no reasonable probability that the
    prosecutor’s or defense counsel’s misstatements caused any
    jurors to convict Johnsen based on a lesser standard than proof
    beyond a reasonable doubt.
    IV. PENALTY PHASE
    A. Juror Misconduct
    Johnsen claims Juror Y.P.’s out-of-court discussion with
    her priest on the Catholic Church’s (the Church) position on
    capital punishment just before the penalty phase violated his
    rights under the First, Sixth, Eighth, and Fourteenth
    Amendments. He argues that the court (1) did not conduct an
    adequate investigation into Juror Y.P.’s misconduct and (2)
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    should have removed Juror Y.P. on its own motion because her
    misconduct biased her against Johnsen.
    1. Background
    On March 10, the court adjourned for a two-week break in
    advance of the penalty phase. Before dismissing the jury, the
    court said: “Remember it’s your duty not to converse among
    yourselves or with anyone else . . . or to form or express any
    opinion thereon until the cause is finally submitted to you.”
    The next day, Juror Y.P. reached out to her Catholic priest
    over the phone. Leaving a voicemail, Juror Y.P. inquired
    whether it was a sin for Catholics to vote to impose the death
    penalty. The priest returned her call later that day and
    informed her that he had spoken to a different judge about her
    message. When Juror Y.P. reiterated her question, the priest
    replied that he would answer her question, but he advised her
    that she had a duty to disclose this conversation to the judge
    presiding over Johnsen’s case. Juror Y.P. agreed to do so.
    The priest then asked her whether the Church’s views
    would change the way she felt about the case. She said no, she
    simply wanted to know the Church’s views. He then told Juror
    Y.P. that voting for the death penalty was not a sin as the
    Church “do[es] believe in capital punishment.”           Shortly
    thereafter, Juror Y.P. called the court and spoke to the bailiff.
    According to the bailiff, Juror Y.P. said she had asked a priest
    about the death penalty and “the priest told her that the
    church’s position was that it wasn’t against the death penalty.”
    A few days later, the court, prosecutor, and defense
    counsel convened to discuss the juror’s out-of-court conduct. The
    court noted that Juror Y.P. had violated her oath not to discuss
    any aspect of Johnsen’s case with nonjurors. Then, with both
    65
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    attorneys present, the court phoned Juror Y.P. During the call,
    Juror Y.P. stressed that she had not discussed any details about
    Johnsen’s case with her priest. She said she simply inquired
    about the Church’s position on capital punishment because she
    was “just curious to know if it was a sin.” Despite her curiosity,
    Juror Y.P. insisted, “Even if [the priest] were to tell me yes, it is
    a sin, it doesn’t mean I wouldn’t [vote for the death penalty] or
    vice versa. I just wanted to know.”
    The court then gave the parties an opportunity to question
    Juror Y.P. They declined to do so. After ending the call with
    Juror Y.P., the court informed both parties, “[I] don’t see any
    reason to do anything” about Juror Y.P.’s conduct. According to
    the court, Juror Y.P. “shouldn’t have actually been talking about
    the death penalty, although we didn’t really specifically tell
    them not to talk about the death penalty. But it does involve
    the case.” Defense counsel observed, “I think it’s technically a
    violation but I don’t think there’s much substance to it.” In the
    end, neither party accepted the court’s invitation “to bring a
    motion” to remove Juror Y.P. from the jury.
    2. Discussion
    The Attorney General argues that Johnsen forfeited his
    juror misconduct claims because he did not ask the court to
    conduct further inquiry, nor did he ask the court to remove Juror
    Y.P. However, the trial court has an independent “duty to
    conduct an investigation when the court possesses information
    that might constitute good cause to remove a juror . . . whether
    or not the defense requests an inquiry, and indeed . . . even if
    the defense objects to such an inquiry.” (People v. Cowan (2010)
    
    50 Cal.4th 401
    , 506.) Thus, Johnsen’s failure to object at trial
    66
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    did not forfeit his claim that the court failed to adequately
    investigate alleged juror misconduct.
    As for Johnsen’s claim that the trial court erred by failing
    to remove Juror Y.P. on its own motion, we have held that a
    defendant forfeits such claims of prejudicial juror misconduct
    when defense counsel does not “propose additional questions [be
    asked of jurors], object to any juror’s continued service, or
    request a mistrial on the ground of juror misconduct.” (People
    v. Foster (2010) 
    50 Cal.4th 1301
    , 1341; see People v. Holloway
    (2004) 
    33 Cal.4th 96
    , 124.) Defense counsel declined the trial
    court’s invitations to question Juror Y.P. and to bring a motion
    to remove Juror Y.P. from the jury. When the court informed
    the parties that it did not “see any reason to do anything” about
    Juror Y.P.’s conduct, defense counsel agreed. By failing to seek
    Juror Y.P.’s excusal or otherwise object to the court’s course of
    action, Johnsen forfeited his claim that the court should have
    removed Juror Y.P. As discussed below, this claim also fails on
    the merits.
    As to the merits, we first address whether the trial court
    conducted an adequate investigation into Juror Y.P.’s alleged
    misconduct. When a court becomes aware of possible juror
    misconduct, it must “ ‘ “ ‘make whatever inquiry is reasonably
    necessary’ to determine whether the juror should be
    discharged.” ’ ” (People v. Martinez (2010) 
    47 Cal.4th 911
    , 941.)
    The nature of the court’s inquiry may consist of a full hearing or
    informal questioning of the juror in the presence of counsel.
    (People v. Fuiava (2012) 
    53 Cal.4th 622
    , 712.) “The specific
    procedures to follow in investigating an allegation of juror
    misconduct are generally a matter for the trial court’s
    discretion.” (People v. Seaton (2001) 
    26 Cal.4th 598
    , 676.)
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    PEOPLE v. JOHNSEN
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    According to Johnsen, the trial court’s inquiry was
    inadequate because the court did not ask “questions designed to
    probe the effect of the priest’s information on Juror Y.P.’s ability
    to decide [Johnsen’s] fate free from outside influence” and did
    not question Juror Y.P. in person. As noted, in the presence of
    Johnsen’s counsel and the prosecutor, the court asked Juror Y.P.
    about her conversation with her priest. After hearing Juror
    Y.P.’s account, the court accepted her assertion that the
    Church’s views had no effect on her assessment of Johnsen’s
    case. The court then took the precaution of inviting either party
    to move to remove Juror Y.P. After both parties declined to do
    so, the court did not remove her on its own motion. Implicit in
    the court’s decision was a finding that Juror Y.P. had been
    forthright about her conversation and her statement that it
    would not affect her views of the case. On this record, we have
    no basis to second-guess the trial court’s credibility
    determination.
    Nor did the court abuse its discretion by questioning Juror
    Y.P. telephonically. The court opted for a telephonic inquiry to
    expeditiously determine whether Juror Y.P. had discussed the
    case before or after she had returned her verdict at the guilt
    phase. As the prosecutor observed, the parties would have
    responded differently if Juror Y.P. had “talked to the priest
    during deliberations. Then we have a whole different ball game.
    Then the question becomes whether [Johnsen] wants to move
    for a mistrial or whether mistrial is an appropriate remedy or
    whether we can substitute an alternate, tell them to go back in
    and deliberate the guilt . . . .” The court agreed that it could not
    leave this inquiry until the jurors returned from their two-week
    break. Although an in-person examination may have been
    preferable, the court did not abuse its discretion by choosing to
    68
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    conduct a telephonic inquiry to quickly determine the extent of
    Juror Y.P.’s out-of-court contact.
    As for Johnsen’s claim that the trial court erred by failing
    to remove Juror Y.P. on its own motion, we ask “whether there
    is any overt event or circumstance . . . which suggests a
    likelihood that one or more members of the jury were influenced
    by improper bias.” (In re Hamilton (1999) 
    20 Cal.4th 273
    , 294,
    italics omitted.) A finding of “juror misconduct ‘raises a
    presumption of prejudice that may be rebutted by proof that no
    prejudice actually resulted.’ ” (In re Hitchings (1993) 
    6 Cal.4th 97
    , 118.) The Attorney General contends that even assuming
    Juror Y.P. committed misconduct, “there is not a substantial
    likelihood that Juror Y.P. was biased on the issue of
    punishment.” “[Juror] bias can appear in two different ways.
    First, we will find bias if the extraneous material, judged
    objectively, is inherently and substantially likely to have
    influenced the juror. [Citations.] Second, we look to the nature
    of the misconduct and the surrounding circumstances to
    determine whether it is substantially likely the juror was
    actually biased against the defendant.          [Citation.]     The
    judgment must be set aside if the court finds prejudice under
    either test.” (In re Carpenter (1995) 
    9 Cal.4th 634
    , 653; see
    People v. Nesler (1997) 
    16 Cal.4th 561
    , 579 [“If we find a
    substantial likelihood that a juror was actually biased, we must
    set aside the verdict, no matter how convinced we might be that
    an unbiased jury would have reached the same verdict, because
    a biased adjudicator is one of the few structural trial defects that
    compel reversal without application of a harmless error
    standard.”].) Our review “accept[s] the trial court’s credibility
    determinations and findings on questions of historical fact if
    supported by substantial evidence,” and we independently
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    examine the mixed question of “[w]hether prejudice arose from
    [the] juror misconduct.” (Nesler, at p. 582.)
    We agree with the Attorney General that, even assuming
    without deciding that there was misconduct, any attendant
    presumption of prejudice has been rebutted. As noted, Juror
    Y.P. asked her priest whether it would be a “sin” for her to vote
    for the death penalty. Her priest said the Church “believes in
    the death penalty,” so it would not be sinful to vote for the death
    penalty. But the priest did not indicate it was desirable to vote
    for the death penalty in any given case, nor would a reasonable
    listener understand the priest’s response to generally favor
    imposing capital punishment. Contrary to what Johnsen
    claims, Juror Y.P.’s question and her priest’s reply did not
    “relieve” her of the personal burden of sentencing him to death.
    There is no evidence that the priest opined further on the death
    penalty or that any other discussion transpired. We cannot say
    that Juror Y.P.’s out-of-court contact with her priest was
    inherently and substantially likely to result in bias. (See People
    v. Danks (2004) 
    32 Cal.4th 269
    , 310–311 [“[W]e are unwilling to
    ascribe to any perceived stereotype that jurors who receive
    advice from Christian spiritual leaders, or are exposed to
    Biblical passages, per se suffer a diminished sense of
    responsibility for their penalty verdict, and are automatically
    rendered incapable of fairly evaluating the evidence and law
    before them.”].)
    Nor can we conclude on the record before us that it is
    substantially likely that Juror Y.P. was actually biased against
    Johnsen. Although we recognize that a juror’s insistence that
    she is not biased against a defendant does not end the court’s
    inquiry (see Crawford v. United States (1909) 
    212 U.S. 183
    , 196),
    the record shows that Juror Y.P. repeatedly clarified to her
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    priest and later to the court that the Church’s views would have
    no effect on her assessment of Johnsen’s case. Immediately
    after her conversation with her priest, Juror Y.P. informed the
    bailiff. The court credited Juror Y.P.’s assurances that “[e]ven
    if [my priest] were to tell me yes, it is a sin, it doesn’t mean I
    wouldn’t [vote for the death penalty] or vice versa. I just wanted
    to know.” Juror Y.P. reiterated that the Church’s position on
    the death penalty was “not going to change the way [she] feel[s]”
    about Johnsen’s case. Nothing in her out-of-court conversation
    or her statements to the court suggested that she had prejudged
    the case before any penalty phase testimony had been
    introduced or that she was predisposed to one result over the
    other. Nor does the record indicate that Juror Y.P.’s ultimate
    vote would be motivated by her religion. In fact, her colloquy
    with the court conveyed the opposite.
    This case is distinguishable from Hill, where we
    emphasized that “an appeal to religious authority in support of
    the death penalty is improper because it tends to diminish the
    jury’s personal sense of responsibility for the verdict.” (Hill,
    supra, 17 Cal.4th at pp. 836–837.) In reversing the defendant’s
    conviction and death judgment, we made clear “that to ask the
    jury to consider biblical teachings when deliberating is patent
    misconduct.” (Id. at p. 836, fn. 6.) Here, the record provides no
    basis to second-guess the trial court’s finding that Juror Y.P.’s
    discussion with her priest would not influence her views on the
    case. Nor is there any indication that Juror Y.P. consulted or
    mentioned her religious views or the Church’s position on the
    death penalty during jury deliberations.
    In sum, the record does not show a reasonable likelihood
    that Juror Y.P. was biased against Johnsen.
    71
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    B. Victim Impact Evidence
    1. Evidence of Leo’s Rehabilitation
    Johnsen argues that penalty phase evidence presented on
    Leo’s physical recovery exceeds the bounds of permissible victim
    impact evidence (Payne v. Tennessee (1991) 
    501 U.S. 808
    ) and
    violates his rights under the Eighth and Fourteenth
    Amendments as well as state law. The crux of his claim is that
    “the rationale for victim impact evidence set forth in Payne
    simply does not justify permitting victim impact testimony for
    any crimes other than the capital crime” and that during the
    penalty phase “a defendant’s moral culpability must be assessed
    on the basis of that [capital] crime alone.” Johnsen asks us to
    narrowly construe “victim,” to mean “capital victim” to the
    exclusion of impact testimony on Leo, a surviving victim of the
    murder-robbery. Johnsen acknowledges we have rejected
    similar arguments before. (See People v. Mitcham (1992) 
    1 Cal.4th 1027
    , 1062–1063; People v. Karis (1988) 
    46 Cal.3d 612
    ,
    649.) Nevertheless, he asks us to reconsider these prior
    holdings.
    We decline to do so. “Although victim impact is not
    expressly enumerated as a statutory aggravating factor, . . . such
    evidence [i]s generally admissible as a circumstance of the crime
    under section 190.3, factor (a).” (People v. Brown (2004) 
    33 Cal.4th 382
    , 396 (Brown).) Johnsen’s argument that victim
    impact evidence is exclusively limited only to impact evidence
    on the deceased victim is unavailing; the language of factor (a)
    is not so narrow. That provision authorizes consideration, at the
    penalty phase, of “[t]he circumstances of the crime of which the
    defendant was convicted in the present proceeding and . . . any
    special circumstances. . . .” (§ 190.3, factor (a), italics added.)
    72
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    Leo’s near-death injuries occurred alongside Juanita’s
    murder while Johnsen was robbing them, a special circumstance
    found by the jury. According to Dr. Brown, the injuries Leo
    sustained during Johnsen’s assault rendered him incapable of
    oral or written communication. Leo’s adult children testified
    regarding their increased caregiving duties of Leo, directly
    attributable to Leo’s injuries and the murder of their mother,
    Juanita, who would have otherwise cared for Leo.
    Their victim impact testimony was also admissible during
    the penalty phase because it concerned the effect of Johnsen’s
    violent crimes against Juanita on her family, including Leo.
    (See People v. Davis (2009) 
    46 Cal.4th 539
    , 618; People v. Taylor
    (2001) 
    26 Cal.4th 1155
    , 1171–1172.) Finally, the testimony
    regarding Leo’s rehabilitation was not “so voluminous or
    inflammatory as to divert the jury’s attention from its proper
    role or invite an irrational response” in violation of due process.
    (Taylor, at p. 1172; see People v. Roldan (2005) 
    35 Cal.4th 646
    ,
    731.)
    2. Alleged Instructional Error
    Johnsen argues that the trial court erred in denying two
    defense-requested jury instructions pertaining to the victim
    impact evidence. Johnsen’s proposed penalty phase instruction
    No. 35 read:
    “Evidence has been introduced for the purpose of
    showing the specific harm caused by the defendant’s
    crime. Such evidence, if believed, was not received
    and may not be considered by you to divert your
    attention from your proper role of deciding whether
    defendant should live or die. You must face this
    obligation soberly and rationally and you may not
    impose the ultimate sanction as a result of an
    irrational, purely subjective response to emotional
    73
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    evidence and argument.       On the other hand,
    evidence and argument on emotional though
    relevant subjects may provide legitimate reasons to
    sway the jury to show mercy.”
    The court declined to instruct the jury to this effect,
    characterizing the proposed instruction as “unnecessary.” In
    People v. Russell (2010) 
    50 Cal.4th 1228
    , we found no error in
    the trial court’s refusal to give an identical jury instruction to
    the one at issue here because it was confusing and because other
    instructions already advised the jury to determine the facts and
    apply the law as directed. (Id. at p. 1265 & fn. 6.) As in Russell,
    we conclude the trial court here did not err in refusing to
    instruct the jury with proposed instruction No. 35.
    The court also refused defendant’s penalty phase
    instruction No. 61, which the court opined was an incorrect
    statement of law. That instruction would have provided: “The
    facts of this case may arouse in you a natural sympathy for the
    victim or the victim’s family. Such sympathy, while natural, is
    not relevant to the penalty decision in this case. [¶] You are to
    base your decision on the evidence, the arguments of counsel,
    and the law stated in these instructions. You are directed not
    to consider any feelings of sympathy you may feel for the parties
    injured or aggrieved in this case.” During the penalty phase,
    however, “the jury may exercise sympathy for the defendant’s
    murder victims and for their bereaved family members” in
    aggravation, as a circumstance of the crime. (People v. Pollock
    (2004) 
    32 Cal.4th 1153
    , 1195; see § 190.3, factor (a).) The trial
    court was correct to deny this instruction, which erroneously
    stated that the jury must “not . . . consider any feelings of
    sympathy . . . for the parties injured or aggrieved.”
    74
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    C. Admission of Photographs of Deceased Victim
    Theresa Holloway
    Over an objection by Johnsen’s counsel, the trial court
    admitted into evidence three postmortem photographs of
    different parts of Holloway’s body. The three photos showed
    close-up shots of injuries to Holloway’s face, neck, and scalp.
    Johnsen renews his argument that these photographs should
    have been excluded from the penalty phase as irrelevant and
    more prejudicial than probative. (Evid. Code, §§ 210, 352.)
    Johnsen begins by disputing the relevance of the photos
    pursuant to section 190.3, factor (b). Factor (b) authorizes
    admission of evidence of Johnsen’s unadjudicated violent
    criminal activity as a factor in aggravation during the penalty
    phase. Johnsen’s primary argument is that photos of Holloway’s
    bodily injuries are not relevant because Johnsen did not
    personally injure Holloway; thus, her injuries could not be
    indicative of Johnsen’s state of mind when he aided and abetted
    her murder.
    We have said that “[v]iolent ‘criminal activity’ presented
    in aggravation may be shown in context, so that the jury has full
    opportunity in deciding the appropriate penalty to determine its
    seriousness.” (People v. Melton (1988) 
    44 Cal.3d 713
    , 757.)
    Here, the photos were not introduced to ascertain Johnsen’s
    state of mind with respect Holloway’s death but rather to convey
    to the jury the unusual context and circumstances of Johnsen’s
    prior violent criminal activity, which the prosecution had to
    prove beyond a reasonable doubt. (§ 190.3, factor (b); see People
    v. Robertson (1982) 
    33 Cal.3d 21
    , 54.) Johnsen did not injure
    Holloway himself, but the other crime’s evidence and Johnsen’s
    written confession strongly suggest that he directed Jurado to
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    kill Holloway to prevent her from disclosing their plans to kill
    Mynatt.
    Contrary to Johnsen’s claim that the photographs were
    cumulative of other testimony, they did have probative value
    during the penalty phase. They rendered Johnsen’s written
    confession more credible and enabled the pathologist to
    effectively communicate the peculiar nature of Holloway’s
    injuries to the jury. (See People v. Bryant, Smith and Wheeler
    (2014) 
    60 Cal.4th 335
    , 423 [“ ‘[a]utopsy photographs are
    routinely admitted to establish the nature and placement of the
    victim’s wounds’ ”].) In other words, the photos had a “tendency
    in reason to prove or disprove a[] disputed fact that is of
    consequence” (Evid. Code, § 210), and the court correctly
    concluded that they are relevant under Penal Code section
    190.3, factor (b).
    As to whether the photos were more prejudicial than
    probative, we are mindful that Evidence Code section 352
    confers on the trial court “broad discretion” (People v. Rodrigues
    (1994) 
    8 Cal.4th 1060
    , 1124) to “exclude evidence if its probative
    value is substantially outweighed by the probability that its
    admission will (a) necessitate undue consumption of time or (b)
    create substantial danger of undue prejudice, of confusing the
    issues, or of misleading the jury” (Evid. Code, § 352). Our review
    is limited to whether the trial court’s determination under
    section 352 constituted an “abuse of discretion.” (Rodrigues, at
    p. 1125.) Our intervention is only warranted when “the
    probative value of the photographs clearly is outweighed by
    their prejudicial effect.” (People v. Crittenden (1994) 
    9 Cal.4th 83
    , 134.)
    76
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    The trial court noted that the prosecution selected only
    three autopsy photos — each depicting a different injury point
    on Holloway’s neck, face, and head — out of nearly 100 photos.
    While recognizing that in general photos of a deceased victim
    may provoke a visceral reaction, we have reviewed the
    challenged photos and conclude that the photos, while
    unpleasant, were not likely to evoke a visceral reaction
    disproportionate to the murder itself. Because the photos’
    probative value was not clearly outweighed by their prejudicial
    effect (Evid. Code, § 352), we conclude that the court did not
    abuse its discretion in admitting the photographs.
    D. Alleged Prosecutorial Misconduct
    Johnsen contends the prosecutor committed multiple acts
    of prejudicial misconduct in his opening and closing argument
    during the penalty phase, requiring reversal. But Johnsen did
    not preserve his objection to much of the alleged misconduct,
    and in any event, his claims either lack merit or do not rise to
    the level of prejudicial misconduct.
    “The same standard applicable to prosecutorial
    misconduct at the guilt phase is applicable at the penalty
    phase.” (People v. Valdez (2004) 
    32 Cal.4th 73
    , 132 (Valdez); see
    People v. Guerra (2006) 
    37 Cal.4th 1067
    , 1153.) “ ‘ “Under the
    federal Constitution, a prosecutor commits reversible
    misconduct only if the conduct infects the trial with such
    ‘ “unfairness as to make the resulting conviction a denial of due
    process.” ’ ” ’ ” (People v. Sattiewhite (2014) 
    59 Cal.4th 446
    , 480
    (Sattiewhite).) Johnsen raises no claims pursuant to the
    California Constitution, so we consider his federal claims alone.
    77
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    1. Comments on Society and the Integrity of the Law
    (a) Background
    During his opening argument, the district attorney told
    the jury, “[Y]ou are representatives of 30 million Californians,
    the great majority of whom are law abiding citizens. You owe
    them and yourselves a conscientious, courageous and thorough
    review of the evidence in this phase of the trial. You owe
    yourselves and them the imposition of a just and appropriate
    punishment. [¶] I urge you to remain faithful to your oath and
    to do the right thing. Fellow citizens expect that you will
    discharge your duty and they are entitled to the discharge of
    that duty.” The prosecutor also contextualized societal values,
    saying, “By subjecting certain murderers to death, society
    acknowledges the level of their evil and their depravity and the
    preciousness of the innocent lives which such murderers
    violently and prematurely ended.” He observed that “[a] society
    which lacks the will to protect its citizens from the likes of the
    Brian Johnsens of the world, is as immoral as it is weak and
    criminally negligent. Fortunately we live in a society which has
    the courage and the will to confront evil and eradicate it.”
    Johnsen’s counsel did not object to any of the prosecutor’s
    remarks. Instead, defense counsel responded in his opening
    argument: “The prosecutor has asked you to return a death
    sentence and the message is if you vote for the death penalty,
    you’re tough on crime; and if you vote for life without possibility
    of parole, well, then you’re not tough on crime because you’ve
    got all these 30 million people behind you. [¶] Well, that’s not
    true.” Defense counsel said: “There’s 12 people and they’re all
    individuals. Each one of you are the ones who are responsible
    for making this decision. You don’t have to worry about the 30
    million people out there.”
    78
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    In rebuttal, the prosecutor told the jury: “You are here to
    apply the law of the State of California in a capital murder case
    and that law requires that you weigh the aggravating and
    mitigating circumstances in deciding whether to impose the
    penalty of death.” “You will be voting for death to, one, maintain
    the integrity of the law, to insure that it works the way it has
    been designed to work. You will be voting for death to impose a
    just and an appropriate penalty.”
    Johnsen’s counsel responded: “I think that Mr. Fontan
    [the prosecutor] is wrong when he says we have to kill Mr.
    Johnsen to maintain the integrity of the law. What we have to
    do to maintain the integrity of the law is do the right thing.”
    “[K]illing Mr. Johnsen would certainly not make the system
    work better, make anybody have more respect for the system,”
    defense counsel said. “The system will be in good shape, thank
    you, tomorrow and next week and next month and next year
    whether you kill Mr. Johnsen or whether you sentence him to
    life without possibility of parole.”
    Although Johnsen’s counsel never objected to the
    prosecutor’s remarks, he requested defendant’s penalty phase
    instruction No. 60: “After weighing all the aggravating and
    mitigating factors, it is up to you individually to decide which of
    the punishments, life without parole or death, should be
    imposed in this case. You must always keep in mind that each
    of you bears the ultimate moral responsibility to determine the
    appropriate penalty under all the circumstances of this case.”
    The district attorney opposed this request.
    The court asked Johnsen’s counsel if he would be satisfied
    if, instead of giving the requested instruction, the court modified
    CALJIC No. 8.88 to include the word “individually” so that it
    79
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    would read: “To return a judgment of death, each of you
    individually must be persuaded that the aggravating
    circumstances are so substantial in comparison with the
    mitigating circumstances that it warrants death instead of life
    without parole.” (Italics added.) Johnsen’s counsel replied:
    “Well, all right. I think that’s appropriate.” The court
    instructed the jury accordingly.
    (b) Discussion
    On appeal, Johnsen contends that the prosecutor’s
    reference to “[a] society which lacks the will to protect its
    citizens from the likes of the Brian Johnsens of the world, is as
    immoral as it is weak and criminally negligent” shamed jurors
    into favoring the death penalty to uphold social expectations
    rather than engaging in an “ ‘individualized inquiry’ ” of
    Johnsen as compelled by the Eighth Amendment. (Romano v.
    Oklahoma (1994) 
    512 U.S. 1
    , 7.)
    To the extent Johnsen’s claim of prosecutorial misconduct
    alleges a due process violation, he has forfeited it by failing to
    “ ‘ “make a timely objection and ask the trial court to admonish
    the jury,” ’ ” as there is no indication a timely objection would
    have been inadequate. (Sattiewhite, supra, 59 Cal.4th at
    p. 480.) However, his “failure to object at trial does not preclude
    him from raising . . . on appeal” a claim under Caldwell v.
    Mississippi (1985) 
    472 U.S. 320
     (Caldwell). (Sattiewhite, at
    p. 481; see Caldwell, at pp. 328–329 [a verdict “made by a
    sentencer who has been led to believe that the responsibility for
    determining the appropriateness of the defendant’s death rests
    elsewhere” violates the 8th Amend.].)
    The prosecutor’s remarks here did not run afoul of the
    Eighth Amendment. “It [i]s not improper for the prosecutor to
    80
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    argue that the jury would be acting as the representative of the
    community or for society as a whole.” (People v. DeHoyos (2013)
    
    57 Cal.4th 79
    , 149.) In Sattiewhite, we declined to find
    misconduct because the prosecutor “accurately described the
    jurors as the conscience of the community.” (Sattiewhite, supra,
    59 Cal.4th at p. 481; see Caldwell, 
    supra,
     472 U.S. at p. 333
    [capital jury may be asked to decide penalty “on behalf of the
    community”].) Here, as in Sattiewhite, the prosecutor “did not
    urge the jury to abrogate their personal responsibility to
    determine the appropriate punishment” or “suggest to the jury
    that ‘the responsibility for determining the appropriateness of
    the defendant’s death rests elsewhere.’ ” (Sattiewhite, at
    p. 481.) The prosecutor merely told jurors that they “owe
    [them]selves and [others] the imposition of a just and
    appropriate punishment” and that a death verdict would be
    consistent with societal values. (See People v. Zambrano (2007)
    
    41 Cal.4th 1082
    , 1179 [“the community . . . has the right to
    express its values by imposing the severest punishment for the
    most aggravated crimes”], disapproved on other grounds in
    People v. Doolin (2009) 
    45 Cal.4th 390
    , 421, fn. 22.) And as in
    Sattiewhite, the court here instructed the jury to determine
    “individually” whether death is the appropriate penalty.
    As for the district attorney’s statement urging the jurors
    to “confront evil and eradicate it,” the word “it” could have been
    understood by a reasonable juror to label Johnsen an “evil” that
    must be “eradicate[d].” “A prosecutor is allowed to make
    vigorous arguments and may even use such epithets as are
    warranted by the evidence, as long as these arguments are not
    inflammatory and principally aimed at arousing the passion or
    prejudice of the jury.” (People v. Pensinger (1991) 
    52 Cal.3d 1210
    , 1251.) The prosecutor’s suggestion that Johnsen is “evil,”
    81
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    followed by a call to “eradicate” such evil, borders on
    “inflammatory” rhetoric. (Ibid.; see People v. Fosselman (1983)
    
    33 Cal.3d 572
    , 580 [a prosecutor may “ ‘use appropriate epithets
    warranted by the evidence,’ ” but “the prosecutor’s
    inflammatory characterization of defendant” could not be
    condoned].) But the comment was limited and fleeting such that
    any error was nonprejudicial.
    2. Comments on Johnsen’s Lack of Sympathy and
    Mercy
    During his opening argument, the district attorney asked
    the jury several rhetorical questions, including: (1) “Why should
    Brian Johnsen’s life be spared when he failed to show any
    compassion or sympathy for his victims at the time he
    committed his murders?”; (2) “Why should a cold-blooded,
    cavalier, thrill-killer like Mr. Johnsen be permitted to live after
    killing twice and attempting to kill again?”; and (3) “Why should
    [Johnsen] live while the remains of his victims decay in the
    earth and their survivors are condemned to grieve the manner
    and tragedy of the death of their loved ones each and every day
    that they live?” Johnsen did not object to these comments, nor
    has he shown that a sustained objection and an admonition from
    the court would have been inadequate. (Seumanu, supra, 61
    Cal.4th at p. 1328.) Thus, he has forfeited this claim on appeal.
    We also reject it on the merits. Section 190.3, factor (k)
    permits penalty phase consideration of any “circumstance which
    extenuates the gravity of the crime even though it is not a legal
    excuse for the crime.” “[R]emorse, which by definition can only
    be experienced after a crime’s commission, is something
    commonly thought to lessen or excuse defendant’s culpability.”
    (Brown v. Payton (2005) 
    544 U.S. 133
    , 142–143.)
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    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    Contrary to Johnsen’s arguments, the prosecutor did not
    attempt to turn Johnsen’s lack of remorse or mercy for his
    victims into an aggravating factor. Rather, the rhetorical
    questions are most reasonably read to advise the jury that
    Johnsen’s lack of compassion or sympathy weighs against
    mitigation. Although a prosecutor may not “argue that the
    absence of such mitigating factors [such as the lack of remorse]
    is itself an aggravating factor justifying the death penalty”
    (People v. Dyer (1988) 
    45 Cal.3d 26
    , 82, italics omitted), the
    prosecutor may argue “a particular mitigating circumstance,
    such as [Johnsen’s] remorse for his victims, is lacking from the
    case” (ibid.) and may also “urge[ the jury] not to be swayed by
    arguments for sympathy” (People v. Sanders (1995) 
    11 Cal.4th 475
    , 554). Here, the district attorney pointed to Johnsen’s lack
    of remorse or mercy for his victims, and urged the jury not to
    offer any sympathy. Such arguments opposing mitigation do not
    offend due process.
    3. Comments on Conspiracy Evidence
    Johnsen alleges the prosecutor’s reference to Johnsen’s
    participation in a conspiracy to kill Mynatt mischaracterized the
    section 190.3, factor (a) motive evidence behind Holloway’s
    killing as a factor (b) violent criminal activity.
    In his opening remarks, the district attorney asked the
    jury to “[t]hink about the motive. [Johnsen] decided to
    participate in [Holloway’s] murder because she was going to go
    to the object of a plot he was involved with, a plot to kill another
    person. So we have a killer here . . . who not only premeditates
    and deliberates his killings, we have a killer that kills so he can
    continue to kill. That was his motive. He had his girlfriend
    killed so he could kill Doug Mynatt.” (Italics added.) As noted,
    83
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    the district attorney also introduced section 190.3, factor (a)
    motive evidence that Jurado, Shigemura, Humiston, and
    Johnsen killed Holloway because they were concerned that
    Holloway might tell Mynatt about Johnsen’s plans to kill him.
    Johnsen claims that his confession to Holloway’s murder
    disavowed any intent to kill Mynatt, instead evincing a fear that
    Mynatt would kill “all of [them]” if Holloway “ratted” them out.
    His confession stated, “I had no choice. It was her or all of us.”
    Thus, Johnsen claims he never intended to kill Mynatt and
    observes Mynatt was never murdered. Because there was
    insufficient corroborating evidence to establish the conspiracy
    under factor (b), Johnsen argues that the prosecutor’s remarks
    transformed his unproven conspiracy crime into a standalone
    aggravating factor in violation of due process.
    We conclude Johnsen’s claim lacks merit. Both parties are
    entitled to “ ‘ “fair comment on the evidence, which can include
    reasonable inferences, or deductions to be drawn therefrom.” ‘ ”
    (People v. Ward (2005) 
    36 Cal.4th 186
    , 215.) “ ‘ “Whether the
    inferences the prosecutor draws are reasonable is for the jury to
    decide.” ’ ”    (Valdez, 
    supra,
     32 Cal.4th at p. 134.)         The
    prosecutor’s theory that Johnsen’s motive for killing Holloway
    to conceal a plot to kill Mynatt was a “reasonable inference”
    based on the evidence presented. Importantly, the court
    instructed the jury that it could consider “[e]vidence regarding
    a plot to kill a Doug Mynatt . . . only to establish the motive for
    the murder of Terry Holloway.” Johnsen does not demonstrate
    how the court’s admonishment was insufficient to prevent the
    jury from misinterpreting or misapplying the motive evidence
    pertaining to Holloway’s killing.          Accordingly, Johnsen’s
    misconduct claim fails.
    84
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    E. Cumulative Error
    Johnsen asserts that the combined errors during the guilt
    and penalty phase warrant reversal of his conviction, his death
    sentence, or both. During the guilt phase, we found error with
    respect to the prosecutor’s misstatement of the reasonable doubt
    standard. (Ante, at pp. 59–64.) At the penalty phase, we have
    acknowledged the prosecutor’s potentially inflammatory
    comment about Johnsen during penalty phase arguments.
    (Ante, at pp. 81–82.) We conclude that their cumulative effect
    does not rise to the level of prejudice necessary to reverse
    Johnsen’s conviction or his sentence.
    F. Challenges to the Death Penalty
    Johnsen raises myriad challenges to the constitutionality
    of California’s death penalty regime. While he acknowledges we
    have consistently found similar claims to be meritless, he
    nevertheless asks us to reconsider our precedent. We decline to
    do so.
    Johnsen contends his conviction and sentence are invalid
    because state judges are subject to direct elections, retention
    elections, or both. Pointing to the 1986 election where California
    voters declined to retain three high court judges ostensibly due
    to their views disfavoring the death penalty, Johnsen argues
    political disincentives to “make defense-favorable rulings in
    capital cases” result in a “tilted system.” Although Johnsen is
    certainly entitled to “impartial” judges, he “is not . . . entitled to
    have his appeal decided by justices who have never formed or
    expressed opinions or thoughts on general topics such as the
    propriety of the death penalty.” (People v. Kipp (2001) 
    26 Cal.4th 1100
    , 1140 (Kipp); see People v. Prince (2007) 
    40 Cal.4th 1179
    , 1299; People v. Avila (2006) 
    38 Cal.4th 491
    , 615 [“This
    85
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    court’s review process is not impermissibly influenced by
    political considerations.”].) Even if judicial elections were a
    conflict of interest, they “would apply equally to all California
    judges and, under the common law rule of necessity, the justices
    of this court [and our lower courts] would not be disqualified.”
    (Kipp, 
    supra, at p. 1141
    .)
    Section 190.3, factor (a), which allows the jury to consider
    the individualized circumstances of the capital offense, does not
    result in arbitrary or capricious imposition of the death penalty.
    (Brown, supra, 33 Cal.4th at p. 401.) On the contrary, section
    190.3, factor (a) guarantees “each case is judged on its facts, each
    defendant on the particulars of his offense.” (Brown, at p. 401.)
    We have previously held that the jury is not required to
    unanimously agree on: (1) which circumstances of the crime are
    aggravating; (2) whether Johnsen engaged in prior violent
    criminal activity under section 190.3, factor(b); (3) whether
    Johnsen committed a prior felony under section 190.3, factor (c);
    and (4) which sentencing factors were aggravating. (People v.
    Bunyard (2009) 
    45 Cal.4th 836
    , 860–861; see also Brown, supra,
    33 Cal.4th at p. 402; People v. O’Malley (2016) 
    62 Cal.4th 944
    ,
    1014 (O’Malley).)
    Johnsen asserts it is unconstitutional to allow the same
    jury that convicted him to decide whether he also committed
    other criminal activity. We have concluded otherwise. (See
    People v. Hawthorne (1992) 
    4 Cal.4th 43
    , 76–77.) “[D]ue process
    does not preclude the consideration of this type of evidence by a
    penalty jury [that] has found the defendant guilty of murder,”
    and “the strong legislative preference for a unitary jury
    outweighs any ‘supposed disadvantage’ to defendant in the
    86
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    single-jury process.” (People v. Balderas (1985) 
    41 Cal.3d 144
    ,
    204.)
    Johnsen also complains that section 190.3 factor (i), which
    requires the sentence to consider the defendant’s age at the time
    of the offense, is unconstitutionally vague. We have held that
    “[t]he use of defendant’s age as a sentencing factor [citation] is
    not impermissibly vague under the Eighth Amendment.”
    (O’Malley, supra, 62 Cal.4th at p. 1013.)
    Johnsen raises several objections to CALJIC No. 8.85, all
    of which we have denied previously, and we again deny them
    here. “The trial court has no obligation to delete from CALJIC
    No. 8.85 inapplicable mitigating factors . . . .” (People v. Mitchell
    (2019) 
    7 Cal.5th 561
    , 589 (Mitchell).) Nor must the court advise
    the jury which factors to consider aggravating or mitigating, as
    “[t]he aggravating or mitigating nature of the factors is self-
    evident within the context of each case.” (People v. Hillhouse
    (2002) 
    27 Cal.4th 469
    , 509.) “The use of certain adjectives such
    as ‘extreme’ and ‘substantial’ in the list of mitigating factors in
    section 190.3 does not render the statute unconstitutional.”
    (People v. Thompson (2010) 
    49 Cal.4th 79
    , 144.) And the court
    need not specify a burden of proof for aggravating or mitigating
    sentencing factors. (People v. Jackson (2014) 
    58 Cal.4th 724
    ,
    773.)
    We have previously held that “neither the cruel and
    unusual punishment clause of the Eighth Amendment, nor the
    due process clause of the Fourteenth Amendment, requires a
    jury to find beyond a reasonable doubt that aggravating
    circumstances exist or that aggravating circumstances outweigh
    mitigating circumstances or that death is the appropriate
    penalty.” (People v. Blair (2005) 
    36 Cal.4th 686
    , 753.) Johnsen
    87
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    asserts that the failure to require written jury findings is
    unconstitutional, but “[j]urors need not make written findings
    in determining penalty.” (People v. Valdez (2012) 
    55 Cal.4th 82
    ,
    180.)
    Johnsen challenges CALJIC No. 8.88, but “[w]e repeatedly
    have rejected identical claims . . . .” (People v. Catlin (2001) 
    26 Cal.4th 81
    , 174.) “The court’s use of CALJIC No. 8.88, which
    instructs that jurors must be ‘persuaded that the aggravating
    circumstances are so substantial in comparison with the
    mitigating circumstances’ to warrant a death judgment, is not
    unconstitutionally vague, appropriately informs jurors, and
    does not violate the Eighth and Fourteenth Amendments to the
    federal Constitution.” (Mitchell, supra, 7 Cal.5th at p. 589.)
    “CALJIC No. 8.88 does not misstate the law by asking jurors
    whether the circumstances ‘warrant[]’ death . . . .” (People v.
    Manibusan (2013) 
    58 Cal.4th 40
    , 100.) “The trial court need not
    instruct jurors that . . . they should impose life imprisonment
    without the possibility of parole if they find that the mitigating
    circumstances outweigh the aggravating circumstances.”
    (People v. Valdez, 
    supra,
     55 Cal.4th at pp. 179–180.) “CALJIC
    No. 8.88 is not constitutionally defective for failing to inform the
    jury that is has the discretion to impose a sentence of life
    without the possibility of parole even in the absence of
    mitigating circumstances.” (People v. Linton (2013) 
    56 Cal.4th 1146
    , 1211.) Likewise, we decline to revisit our precedent
    holding that “[t]he jury is not required to unanimously find that
    certain aggravating factors warrant the death penalty under the
    federal Constitution, and the equal protection clause does not
    compel a different result.” (Mitchell, at p. 588.)
    Contrary to Johnsen’s contention that California law fails
    to meaningfully narrow the pool of all those convicted of murder
    88
    PEOPLE v. JOHNSEN
    Opinion of the Court by Liu, J.
    for death penalty eligibility, section 190.2 “adequately performs
    the constitutionally mandated narrowing function.” (People v.
    D’Arcy (2010) 
    48 Cal.4th 257
    , 308.) “Our state death penalty
    statute is not unconstitutional for failing to require intercase
    proportionality review or disparate sentence review.” (People v.
    Eubanks (2011) 
    53 Cal.4th 110
    , 154.) “California’s use of the
    death penalty does not violate international law, the federal
    Constitution, or the Eighth Amendment’s prohibition against
    cruel and unusual punishment in light of ‘evolving standards of
    decency.’ ” (Mitchell, supra, 7 Cal.5th at p. 590.)
    CONCLUSION
    We affirm the judgment.
    LIU, J.
    We Concur:
    CANTIL-SAKAUYE, C. J.
    CORRIGAN, J.
    CUÉLLAR, J.
    KRUGER, J.
    GROBAN, J.
    IKOLA, J.*
    *
    Associate Justice of the Court of Appeal, Fourth Appellate
    District, Division Three, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    89
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion People v. Johnsen
    _________________________________________________________________________________
    Unpublished Opinion
    Original Appeal XXX
    Original Proceeding
    Review Granted
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S040704
    Date Filed: February 1, 2021
    __________________________________________________________________________________
    Court: Superior
    County: Stanislaus
    Judge: David G. Vander Wall
    __________________________________________________________________________________
    Counsel:
    Neoma Kenwood, under appointment by the Supreme Court, for Defendant and Appellant.
    Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
    General, Michael P. Farrell, Assistant Attorney General, Ryan B. McCarroll and A. Kay Lauterbach,
    Deputy Attorneys General, for Plaintiff and Respondent.
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    Neoma Kenwood
    1569 Solano Avenue
    Berkeley, CA 94707
    (510) 528-4775
    A. Kay Lauterbach
    Deputy Attorney General
    1300 I Street, Suite 125
    Sacramento, CA 94244-2550
    (916) 210-7671