People v. Seriales

Full title: THE PEOPLE Plaintiff and Respondent, v. KEITH JOHN SERIALES, Defendant and…

Court: California Court of Appeals, Fifth District

Date published: Nov 1, 2007

No. F049062 (Cal. Ct. App. Nov. 1, 2007)

Opinion

THE PEOPLE Plaintiff and Respondent, v. KEITH JOHN SERIALES, Defendant and Appellant. F049062 California Court of Appeal, Fifth District November 1, 2007

NOT TO BE PUBLISHED

APPEAL from a judgment of the Tulare County Super. Ct. No. VCF069782D. Patrick O'Hara, Judge.

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Ardaiz, P.J.

Appellant Keith John Seriales stands convicted, following a jury trial, of first degree murder with kidnap-murder, foreign object penetration-murder, and murder by torture special circumstances (Pen. Code,¹ §§ 187, subd. (a), 190.2, subd. (a)(17), (18); count 1); torture (§ 206; count 2); kidnapping (§ 207, subd. (a); count 3); sexual penetration with a foreign object, involving torture, kidnapping, and tying and binding (§§ 289, subd. (a), 667.61, subds. (a), (d) & (e); count 4); sexual penetration with a foreign object while acting in concert, involving torture, kidnapping, and tying and binding (§§ 264.1, 289, subd. (a), 667.61, subds. (a), (d) & (e); count 5); and sexual penetration with a foreign object of a person under age 18 (§ 289, subd. (h); count 6).² As to each count, two vicarious arming allegations (§ 12022, subd. (a)(2)), one involving a nine-millimeter handgun and the other an AK-47 assault rifle, were found to be true. The prosecution sought the death penalty, but jurors determined the appropriate penalty to be life in prison without the possibility of parole. Following denial of his new trial motion, appellant was sentenced to a total unstayed term of life in prison without the possibility of parole plus 20 years. In this timely appeal, he raises a number of claims of trial and sentencing error. For the reasons that follow, we will affirm his convictions, but remand the matter for resentencing.

1 All statutory references are to the Penal Code unless otherwise stated.

2 Due to a clerical error, the verdict form for count 6 refers to a violation of subdivision (a) of section 289. (See Discussion, pt. VIIIA., post.)

FACTS

I

DISCOVERY OF THE HOMICIDE AND SUBSEQUENT INVESTIGATION

Somewhere around 11:00 p.m. on January 24, 2001, Virginia Cabrera, who lived in rural Tulare County, heard two cars speed by, and her normally quiet dog started barking. The next morning, the bound, nude body of 17-year-old Eric Jones was found near Avenue 16 and Highway 43, less than a mile from Cabrera’s residence. Ten 9-millimeter shell casings were located nearby, and five bullets were dug out of the ground underneath the body. There were bullet holes in Jones’s back and a wooden stick protruding from his anus. Duct tape was wrapped around his face and head, and his hands and feet were taped together behind him. There were blue markings on his back.³ An autopsy revealed nine entrance wounds to Jones’s right back, with eight corresponding exit wounds to the chest. At least two of the entrance wounds showed evidence of tattooing, indicating very close-range shots. There was also a single gunshot entrance wound to the right cheek. Jones’s face was bruised and abraded, and many of his teeth were broken or knocked free from their sockets. There was a superficial puncture wound on Jones’s back that could have been made by a pointed blunt object such as a screwdriver or an ice pick. The skin of the anus was abraded, and the rectum showed areas of soft tissue hemorrhage or bruising extending six to eight inches into the body. Bruising of the rectum, as well as bruising and hemorrhage to the chest, indicated Jones was alive when the various wounds were inflicted. No injuries consistent with electrocution were noted; however, depending upon various factors, electrocution could have occurred without leaving physical evidence. The cause of death was exsanguination due to multiple gunshot wounds to the back. Death would have occurred within a few minutes.

3 The prosecutor presented much of the evidence concerning the body’s condition through photographs, rather than descriptive testimony.

Investigation focused on a group of Jones’s acquaintances, who, like Jones, lived in or near Delano: Gerardo (Jerry) Zavala, who resided a few miles outside of town at a place called “the ranch”; appellant, who was 29 years old at the time and drove a white Jaguar; Jorge (George or Coce) Vidal, who was sometimes seen in appellant’s company; 17-year-old Daniel Portugal; Juan Soto; his brother Gerardo Soto, who drove a green Intrepid; and Tyrone Ebaniz, who was then 15 or 16 years old.

Jones and Ebaniz were best friends, and they were together at the home of Antoinette Cota, Ebaniz’s sister, the night Jones was murdered. Jones left alone, on foot, after dark. Ebaniz’s whereabouts were unknown to his family until the next morning, when he returned to his grandmother’s house, where he was living. The police contacted him that day.

The morning Jones’s body was found, Vidal, the Sotos, and another person offered to burn the trash from inside the home of Juanita Zavala, a sister of Zavala who lived with him at the ranch. Juanita Zavala found the offer unusual. These individuals also had black bags with them. Patricia Mojica, another sister of Zavala who lived at the ranch with Gerardo Soto, recalled Vidal, the Soto brothers, Portugal, and appellant doing something in the backyard at the ranch around the time Jones’s body was discovered. Around the time Jones was found murdered, Mojica saw the white Jaguar one night when just appellant and Vidal were there.

On January 25, appellant and his wife, Lupe Gonzalez, went to San Diego in the Jaguar and returned the next day. Gonzalez did not stay at their house on the night of January 26, because appellant called and told her to go to her brother’s house. When she asked why, he would not say, but he seemed a little nervous.

On the evening of January 26, Vidal arrived at the Bakersfield residence of Cecilia Ramirez, whose husband was Vidal’s cousin. Vidal said he had come to visit. He arrived in a white Jaguar.⁴ The next day, he left and returned in the same Jaguar.

4 Although Ramirez testified that the man driving the car was not in the courtroom, she previously had identified a photograph of appellant as that person.

Gerardo Zavala was arrested on January 27, 2001. There were several 55-gallon burn barrels behind his residence. On top of one were what appeared to be shoelace eyelets and brown leather that could have been from a belt.

Zavala was the godfather of Jose Jiminez’s baby, and the two men also worked together part-time, doing auto painting. As a result, Jiminez spent time at Zavala’s residence. Between the time Jones was in the news and Zavala’s arrest, Jiminez was present in a shed in the back of Zavala’s place when he overheard a conversation between appellant, Zavala, and Vidal. Jiminez did not recall whether either of the Soto brothers was present. Although he claimed at trial not to remember the conversation, he previously told the district attorney’s investigator that he had a clear memory of what happened. He heard appellant say, “we finally got that nigger[.]” Vidal then responded, “he won’t be bothering us anymore[.]” Appellant then told the others present that if they said anything different than what he said or told them to say, he was going to “stick a broom handle up their ass[.]” Jiminez told a different investigator that it was Vidal who made the first two remarks.

On January 27, 2001, authorities from Tulare and Kern Counties responded to Juan Soto’s residence in Delano. Mail addressed to Gerardo Soto was found inside the residence, and a Dodge Intrepid registered to him was parked in the garage. Ebaniz’s, Portugal’s, and Juan Soto’s fingerprints were found on the outside of the car. Bloodstains and white residue that appeared to be detergent wipings were found on the garage floor. Shoe tracks were found in the bloodstains, which, DNA analysis showed, belonged to Jones. Near a washing machine in the garage was a bleach bottle with a pair of scissors inside. Jones’s blood was found on the scissors. Also found inside the garage was a squeegee head without a handle. Pieces of black electrical tape, that appeared to have been torn from the roll, were found in various locations in the garage. A piece of duct tape was found on the ground by the washer, and a number of beer cans were found inside the garage and in the side yard of the residence. Vidal’s and Gerardo Soto’s fingerprints were found on some of the cans.

That same day, appellant was arrested and subsequently gave a statement to Sergeant Skiles, which is described in more detail, post. When his white Jaguar was searched, newspapers from Fresno and Bakersfield, dated January 26, 2001, were found inside. On the front page of the Fresno paper was an article about Jones’s death.

The day following his arrest, appellant directed Skiles to the location in Bakersfield at which he had last seen Vidal. Appellant expressed to Skiles that he was afraid. Vidal was arrested early that morning at Cecilia Ramirez’s residence, the location shown to Skiles by appellant. Vidal subsequently directed Skiles to two 9-millimeter handguns and a loaded SKS rifle.⁵ One of the handguns was determined to have fired all 10 shell casings recovered from the location where Jones was killed, and was the gun used to kill Jones.

5 An SKS rifle is very similar to an AK-47 assault rifle.

II

APPELLANT’S STATEMENT

The tape recording of the statement appellant gave to Sergeant Skiles was played for the jury.⁶ In it, appellant related that he was acquainted with Jones, who had come by one day about a month earlier to try to sell him a nine-millimeter pistol. Appellant believed Jones had stolen the weapon, as someone called “Crispie” subsequently tried to take it back from appellant. Crispie brought Jones to appellant’s house, as Jones apparently had tried to say that appellant had taken the gun from him. When Crispie put a gun to Jones’s head, appellant returned the weapon. Appellant lost the $150 he had paid for it. Appellant denied that Jones had ever stolen anything from him personally, although he had heard that Jones and a couple of guys were going to try to rob him or something. Appellant never confronted Jones about these rumors, and nothing ever happened.

6 Appellant professed to know only first names or nicknames and, in the case of Daniel Portugal, simply referred to a dark-complected male with thick eyebrows. For the sake of clarity, we have inserted the actual names, wherever possible, as established by other evidence presented at trial.

With respect to the homicide, appellant was at home when Gerardo Soto telephoned around 7:00 or 7:30 p.m. Gerardo Soto said Jones was there and to bring Vidal. Appellant did not know why “[t]hey” wanted him to bring Vidal over, but he thought Jones had tried to steal Vidal’s car or something. They did not tell appellant what they were going to do until he got there and saw everything. He knew they were going to confront Jones, but “just figured we’re just gonna beat him up and let him go.”

Vidal was already at appellant’s house. The two men were “pretty close,” with Vidal being someone who thought that if he hung around with appellant, he could get rich.⁷ They first went to the ranch to pick up Zavala. Gerardo Soto had not said to bring him; it was Vidal’s idea to do so. When Zavala was not home, appellant and Vidal went to Juan Soto’s house.

7 Appellant admitted being a drug dealer.

Upon their arrival, appellant and Vidal went into the house and then on into the garage. Gerardo and Juan Soto, Zavala, Portugal, and Ebaniz were there. Portugal was walking around with an AK-47. Jones was already tied up, and everyone except Ebaniz was beating and kicking him. Ebaniz was just watching. Gerardo Soto and Zavala told appellant that Ebaniz had brought Jones there, and had set him up by making a call to get him to come. Neither appellant nor Vidal had known Ebaniz was going to do that, but Vidal “got a hardon” when he saw Jones lying there.

Within a couple minutes of appellant’s arrival, Vidal struck Ebaniz, whom appellant told not to worry. He and Zavala took the youngster into the house. Appellant stayed in the house a lot, talking to Ebaniz and telling him to “just kick back.” Juan Soto also mostly stayed in the house, as he was scared. Appellant went back and forth between the house and the garage, as sometimes Vidal called to him. Sometimes Gerardo Soto had the AK-47, and other times Portugal had it. Both pointed it at Jones’s head while they were kicking him. Vidal was hitting Jones with his fist and accusing him of trying to steal his car. Jones said that Pepe had brought him to steal Vidal’s car. Appellant knew Pepe as someone who started trouble and stole from everyone. He had tried to break into appellant’s house.

When appellant went into the garage in response to Vidal’s summons, Jones was “[p]retty bad,” although he “wasn’t that bad” at this time. He was tied up with some orange extension cord. Vidal told appellant and Zavala to go get some black plastic, appellant guessed to do something with Jones.⁸ Vidal was “crazy that night, he went wacko.” Jones was “[b]ad,” as he was still being beaten off and on by Portugal and Vidal, although all his clothes were still on. Vidal, who was “psycho,” was responsible for making Jones “all swelled up.”

8 Appellant laughingly stated that he did not know what Vidal was going to do, “make a burrito out of him or … wrap his ass up .…”

Appellant never went and got the plastic, but instead he and Zavala went to appellant’s house. They were there about five minutes, then appellant saw the butcher from Jimenez Market walking by and gave him a ride to his home on the other side of town. After dropping him off, appellant and Zavala returned to the Soto residence. They went into the garage, and appellant announced that he had not gotten the plastic. Jones now had something blue over his head that looked like a pillowcase. He was just lying there, still tied with the extension cord and still clothed. His hands were tied to his feet behind his back. At some point, appellant heard him say that it hurt, and to loosen it.

Appellant remained in the garage for five or 10 minutes. He felt that he was in a position where, if he interfered, he would be shot. Ebaniz was in the garage. Vidal tried to scare him by calling him in to watch what was going on. Jones was still on the ground. Everyone continued to beat him, off and on, and pointed the gun at him. About this time, they plugged in a wire and shocked him. They used an extension wire that had been cut, and one of them put the wire on Jones’s fingers and tortured him. When the wire was plugged in, Jones’s body would shake and he would moan. Vidal told Jones that today he was going to die and that he was going to make the papers. Vidal told Ebaniz that Jones was saving his grandmother’s life. Appellant assumed he meant he had been going to kill Jones’s grandmother if he could not get to Jones. Vidal was trying to scare Ebaniz so that Ebaniz would not say anything. Everyone took turns plugging in the wire. Vidal even made Ebaniz plug it in one time so he would be a part of it. No one did that to appellant.

Appellant took Ebaniz back into the house. Zavala was also there. At some point, Juan Soto was called into the garage and told to go get some beer with Zavala. The two men left. Appellant tried to keep Ebaniz in the house as much as possible, but Vidal kept calling Ebaniz back.

Juan Soto and Zavala were gone for about 30 minutes. During that time, appellant went outside and stood on the front porch for about 10 minutes, to look at his car and make sure nobody messed with it. He went back inside when Zavala and Juan Soto returned with a 24-pack of Bud light cans. They went into the house and then back into the garage, but appellant remained in the living room with Ebaniz.

After about 10 minutes, Vidal called them both back into the garage. The hood was off Jones’s head; he looked “all fucked up” and was “all swelled up” and, although he was conscious, his eyes were closed. He was “pretty bad” and seemed to be in a lot of pain. He would moan when they kicked him. Portugal still kicked him a lot, and appellant saw Vidal strike him once on the back with the butt of the AK-47. They were still “talking shit” to him, and Vidal asked him if he wanted an open casket. Vidal was “siked [sic] out” and nobody wanted to say anything to him.

Appellant had tape at his house, and they told him to go get it, so he left again.⁹ When appellant went back into the garage, Portugal and Vidal were removing the extension cord because of fingerprints. Zavala and Juan Soto were inside the house at this point. Vidal told Ebaniz that he wanted to cut off Jones’s ear and put it on Pepe’s car. They cut off Jones’s clothing with a box cutter, then Vidal made Ebaniz started taping Jones’s legs. When he was too slow, Portugal took the duct tape away from him and started doing it faster. The whole time, Gerardo Soto was holding the AK-47 on Jones so he would not run.

9 There was some uncertainty about how many times and when, during the course of events, appellant left the Soto residence. When Skiles and appellant were discussing what occurred within a short time after appellant’s initial arrival there and Skiles asked how long appellant stayed in the house, appellant replied that he left a couple of times, went back home, and then gave the Jimenez Market butcher a ride home. This occurred when Vidal told appellant and Zavala to get some black plastic. When Zavala and appellant returned, Jones was still tied with extension cords and still clothed. Later, when discussing how the extension cords were changed for duct tape, appellant first said they had the tape there, then said no, he had tape at his house and they told him to go get it, so he left again. Apparently, however, the audiotape stopped working and was changed, after which Skiles announced that appellant had reminded him that appellant brought back duct tape the first time he left and went home at Vidal’s direction, as Vidal had known appellant had a roll of duct tape at his house. Appellant agreed with this statement. Lupe Gonzalez testified that appellant left the house several times that evening. The first time was around 7:00 or 8:00 p.m. Although Chinese food had been ordered for dinner, it had not yet arrived when appellant left. While Gonzalez expected appellant back shortly, she ended up going to bed before he returned. The first time he returned, she heard him in the kitchen and assumed, since she heard dishes, that he was getting himself something to eat. He then left again and returned. This time, he went to bed.

Portugal taped up Jones’s legs, then Jones was told to get on his stomach. Jones rolled over on his own, and Portugal taped his hands. Jones’s hands were then taped to his feet. The participants were wearing white cotton gloves.

While Jones was on his stomach, Vidal started looking around the garage and found something that looked like a broom stick. He put some kind of motor oil or transmission oil on it, then inserted it in Jones’s anus. Jones was moaning. Vidal said, “‘See, you fucked me now I’m fucking you.’” Vidal pushed the stick in and moved it in and out, and he also made Ebaniz do it. Ebaniz, who was afraid, just touched the stick and then threw up and went back inside the house.

Portugal and Gerardo Soto remained in the garage, while Vidal, appellant, Ebaniz, and Zavala came inside the house for about 15 minutes. Vidal was doing something with the gun he had and was cleaning the bullets.¹⁰ Appellant was in and out, between the house and the garage. When they were about to leave, they taped Jones’s mouth and then his eyes, then tried to cover his head with a plastic bag.¹¹ Appellant saw that Jones was gasping for air, so he walked away. When Vidal called to everyone to come on, Portugal and Gerardo Soto threw Jones into the trunk of Gerardo Soto’s green car, which was in the garage. Appellant saw that “Pepe’s bitch” had been written on Jones’s back in blue. Appellant did not see it written, but Vidal was laughing and saying to look at what he had made Ebaniz do.

10 Although this was the first time appellant had seen Vidal with his nine-millimeter that night, appellant was aware Vidal carried the gun all the time. He knew Vidal had the gun when he first took Vidal to the Soto house.

11 Because appellant initially omitted the sexual assault, the chronology of events during this time period is somewhat unclear. Appellant first said Jones’s head was taped and then he was left lying, naked, for a while. Everyone but Portugal and Gerardo Soto came inside, and Vidal did something with his gun. Later, however, appellant said the sexual assault occurred before Jones’s head was taped up, and that he thought Jones’s head was taped when everyone was about to leave. Appellant estimated that he and Vidal arrived at the house at 7:00 p.m., and were there until 10:30 or 11:00 that night.

Appellant went outside, then the garage door opened and Vidal, Gerardo Soto, and Portugal left in Gerardo Soto’s green car. Gerardo Soto was driving. They wanted Ebaniz to go with them, but appellant took him instead, along with Zavala. Vidal told appellant to follow them, which he did because he knew Vidal would be angry if he did not.

They proceeded down Highway 43. Appellant momentarily lost the other vehicle when it made a U-turn, but then he saw it parked with its lights off. The trunk was “popped” from inside the car, then Vidal, Gerardo Soto, and Portugal picked Jones up and threw him out on the side of the road. Appellant, Zavala, and Ebaniz remained in appellant’s car. Vidal wanted Ebaniz to see what was happening, which was why he made appellant follow him.¹² It was very dark, but appellant heard gunshots and saw Vidal firing. Appellant did not know how many times Vidal fired, but when he saw Vidal afterwards, Vidal said the clip was empty and the gun cocked back. If Vidal emptied the clip, he had to have fired nine or 10 rounds. Vidal said the first bullet he used had a hollow point.

12 When Skiles asked whether Vidal told appellant that he wanted Ebaniz to see it, appellant responded, “Well yeah. He wanted us to stay in the car, you know … I guess hear the bullet.” Skiles again asked, “He told you that?” Appellant responded, “Oh yeah. He wanted him to see that shit.” When Skiles then asked when Vidal told appellant that, appellant replied, “He didn’t tell me that, but I’m just saying that’s what it was. Yeah. So he wouldn’t snitch. That’s the reason why.”

Afterwards, everyone drove off. Appellant took Ebaniz to appellant’s house, but then Vidal wanted Ebaniz to return to the Soto residence, so appellant took him back. Vidal told Ebaniz that Ebaniz belonged to him now and was going to stay with him, and he later told appellant that he kept Ebaniz for two days.

Vidal was always calling Ebaniz to watch what was going on, to try to scare him. He would say something like he would do it to Ebaniz. The day appellant gave his statement to Skiles, Vidal had told appellant he thought about doing it to Ebaniz. Ebaniz apparently had been picked up for questioning, however, and Vidal said he wanted to find Ebaniz’s sister and family so he could come after Ebaniz. Vidal wanted to kill everyone and said he would kill Ebaniz’s family in return for Ebaniz snitching on him.

DISCUSSION

I

APPELLANT’S STATEMENT

Appellant says the trial court erred by admitting his statement into evidence at trial, because, although he was advised of his Miranda ¹³ rights, he did not unequivocally waive them, thus rendering the statement involuntary.

13 Miranda v. Arizona (1966) 384 U.S. 436.

A. Background

It is undisputed that Sergeant Skiles read appellant his Miranda rights, and elicited from appellant that he understood each right, prior to questioning. According to the transcript of the tape-recorded statement, this ensued:

“Det. R. Skiles: Now with those rights in mind do you want to talk to me about this investigation?

“Keith Seriales: Mmm, I don’t know.

“Det. R. Skiles: It’s, it’s up to you I can ask you the questions but I need an answer from you before I can ask you anything, I need you to answer. I realize there’s more people involved in this deal. We have a lot of evidence here and that’s why we’re at your house and it’s, it’s up to if [sic] you’re gonna take this opportunity or not.

“Keith Seriales: (unintell)

“Det. R. Skiles: (unintell)

“Keith Seriales: There’s nothing you can do for me (unintell)

“Det. R. Skiles: Well I, I’ve told you on the way over here I would, I would make no promises to you, I, I’m not gonna lie to you and the only person that can help you right now is, is you. Uhm I don’t, I myself don’t know your exact involvement in this case. I mean I, I know part of it but I don’t know exactly what you did during the course of these circumstances …

“Keith Seriales: What, what …

“Det. R. Skiles: I don’t know uhm exactly what caused what happened.

“Keith Seriales: What is uh my involvement (unintell)

“Det. R. Skiles: Well you’re gonna have to answer my question before I can talk to you about the case. I’m letting you know what my, my focus of investigation is. But I need to know if you, you want to talk to me about the case. You, you can decide at any time …

“Keith Seriales: Let me hear, let me hear your question …

“Det. R. Skiles: You, you can decide at any time if you, if you want to revoke these rights and not answer any questions.

“Keith Seriales: Well let me hear your question (unintell)

“Det. R. Skiles: I have more than one question, I have a lot of questions. That’s what I mean, I, I don’t know if you understood your Miranda rights. Did you understand them?

“Keith Seriales: Yeah I understand.

“Det. R. Skiles: Okay. If you decide to talk to me, I can question you and you can decide at any time [ … ]

“Keith Seriales: To stop.

“Det. R. Skiles: To stop or you can decided [sic] that you didn’t want to answer a certain question.

“Keith Seriales: Uh huh.

“Det. R. Skiles: That’s up to you.

“Keith Seriales: Uh huh.

“Det. R. Skiles: But I need to know if you’re willing to talk to me at this time?

“Keith Seriales: Uh huh.

“Det. R. Skiles: You are?

“Keith Seriales: (unintell)

“Det. R. Skiles: Okay. Uhm my first question is do you know Eric Jones?” (Italics added.)

Appellant answered the question and the interview proceeded.

Prior to trial, appellant moved to suppress his statement on the ground it was taken in violation of his constitutional right to remain silent. Appellant claimed that, while the transcript showed him saying, “Mmm, I don’t know,” when asked by Skiles if he wanted to talk about the investigation, in reality appellant had given an unequivocally negative response. Appellant further contended that, even assuming his response was equivocal, his rights nonetheless were violated because Skiles’s follow-up questions were not limited to clarification of whether appellant was waiving or invoking his Fifth Amendment rights. The People opposed the motion, and an evidentiary hearing was held.

At the hearing, Skiles testified that at 4:45 p.m. on January 27, 2001, he came into contact with appellant when Skiles and other officers were serving a search warrant on appellant’s residence in Delano. Appellant was taken into custody and informed of the purpose of the investigation. After several hours, during which time the house was being searched, Skiles transported appellant to the detective bureau of the Delano Police Department for potential questioning. On the way, Skiles told appellant that he could not ask appellant any questions, as that would be a violation of his Miranda rights, and that they were going to a location where Skiles could give him that advisement. Skiles wanted to wait until they got to the police station so that he could use an interview room and recording equipment.

Once at the police station, Skiles set up an interview room. Only he and appellant were present during the interview, which commenced at 8:19 p.m. Skiles began by having appellant state his name and date of birth, and he noted that he had previously told appellant of the reason for his arrest. Skiles then informed appellant of his rights, using his department-issued Miranda card. Appellant indicated that he understood each of his rights.

Skiles next asked if appellant would talk to him. Skiles had reviewed the tape recording of the statement in light of appellant’s motion to suppress and, although appellant had not clearly enunciated his words, Skiles had deciphered a mumbled, “‘I don’t know.’” To Skiles, this meant appellant was unsure whether he wanted to make a statement. Skiles did not believe appellant had either waived or invoked his rights as of that point.

After the pertinent portion of the tape was played for the court, Skiles testified that he subsequently proceeded as he did because he understood appellant to be unsure whether he wanted to talk to Skiles, and Skiles was not going to ask him any questions outside Miranda until appellant said whether or not he wanted to talk. When appellant said there was nothing Skiles could do for him, Skiles believed appellant was fishing to see if there was indeed something Skiles could do for him. Skiles had heard words to that effect on numerous occasions; they usually involved a suspect asking for something. Skiles told appellant that the only person who could help appellant right then was appellant, because appellant was indeed the only person who, if he wished to talk, could tell Skiles his involvement. Skiles told appellant that he did not know what appellant’s involvement was because he did not know, although he wanted to. Before Skiles started his questioning about the case, he understood appellant to have waived his right to remain silent and to have agreed to talk to Skiles. Had appellant made any gestures indicating no, such as shaking his head, Skiles would not have continued talking to him.

Appellant also testified at the hearing. When Skiles asked whether appellant wanted to talk to him about the investigation, appellant responded, “‘Nah’” and then “‘huh’” and gave a little shake of his head. During the pause before he answered the question, appellant was thinking about what had happened to him when he gave a statement in his federal case.¹⁴ When he made his response, his intention was to convey that he did not want to talk. Appellant believed Skiles understood this. Appellant did not say anything like, “I told you I didn’t want to talk to you,” because Skiles acted as if he did not hear appellant. Appellant conceded that he probably could have made it clearer for Skiles, but he believed Skiles understood.

14 Following his arrest in a federal drug case, appellant gave a statement to the FBI and it caused a lot of problems for him and his family. When he made his statement to the FBI, he did not yet have an attorney. Once he had one, the attorney told him never to give a statement. Appellant’s arrest in the present case basically removed his opportunity for any deal in the federal case, and he knew Skiles could not give him a deal.

When Skiles mentioned that there were more people involved, that the authorities had a lot of evidence, and that he knew part of appellant’s involvement in the case, it piqued appellant’s curiosity. Appellant started talking because Skiles made him curious, and he wanted to figure out what Skiles knew.

Following argument, the trial court found an adequate waiver of Miranda rights and denied the motion to suppress. The court stated:

“First of all, there’s no question that the Miranda rights – there’s no issue everybody agrees that Miranda rights were properly given. Now we get to the point now with these rights in mind, do you want to talk to me about this investigation?

“At that point there’s a lengthy pause, some seconds, several seconds before there is an answer, which is a generally mumbled answer.

“The People’s stenographer says um, I don’t know. The officer on the stand said his recollection was something like um, I don’t know. The defendant says he said no. And it is in my estimation, I listened to it a number of times, it was not enunciated well. It certainly wasn’t clear. If I was an officer, I would not have understood it to be a clear invocation of rights.

“So then the officer then said before I ask you any questions, it’s up to you. I can ask you the questions, but I need an answer from you before I can ask you anything. That’s the next thing he said.

“The next two pages basically were an attempt as much as by the officer, to clarify whether he wished to talk to him. I see that that [sic] this is a clarification based upon either – certainly, I cannot say that there was an unequivocal invocation of the rights. I couldn’t hear what was said.

“I believe the officer, that he was not clear that there was an invocation of rights. So once he did get the matter cleared up, he said I need to know whether you want to talk to me. And there was an uh-huh. Affirmative uh-huh.”

We summarily denied appellant’s ensuing petition for a writ of mandate. (Case No. F048184, June 17, 2005.) As previously described, the tape recording of appellant’s statement was played for the jury.

B. Analysis

The Fifth Amendment to the United States Constitution guarantees that a suspect in a criminal case “may not be compelled to be a witness against himself in any respect.” (Colorado v. Spring (1987) 479 U.S. 564, 574.) “To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. [Citation.] As long as the suspect knowingly and intelligently waives these rights, the police are free to interrogate him. [Citation.]” (People v. Stitely (2005) 35 Cal.4th 514, 535.) The waiver inquiry has two aspects. “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude the Miranda rights have been waived. [Citations.]” (Moran v. Burbine (1986) 475 U.S. 412, 421.)

“Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” (Moran v. Burbine, supra, 475 U.S. at pp. 422-423, fn. omitted.) If, however, “the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” (Miranda, supra, 384 U.S. at pp. 473-474.) “If a suspect’s request for counsel or invocation of the right to remain silent is ambiguous, the police may ‘continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights.’ [Citations.]” (People v. Box (2000) 23 Cal.4th 1153, 1194.) Statements obtained in violation of these rules are inadmissible to prove guilt. (People v. Stitely, supra, 35 Cal.4th at p. 535.)

“In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda …, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ‘“give great weight to the considered conclusions” of a lower court that has previously reviewed the same evidence.’ [Citations.]” (People v. Wash (1993) 6 Cal.4th 215, 235-236.) The prosecution bears the burden of establishing the voluntariness of a defendant’s waiver and confession by a preponderance of the evidence. (People v. Box, supra, 23 Cal.4th at pp. 1194-1195; see Colorado v. Connelly (1986) 479 U.S. 157, 168.)

We have listened to the tape recording of appellant’s statement and are convinced, based both on the discernable words and the inflection of appellant’s voice, that he did not say he did not want to talk to Skiles about the investigation, but instead indicated he did not know in response to Skiles’s question, “Now with those rights in mind do you want to talk to me about this investigation?” We recognize that “a suspect may indicate that he wishes to invoke [his Fifth Amendment] privilege by means other than an express statement to that effect; no particular form of words or conduct is necessary.” (People v. Randall (1970) 1 Cal.3d 948, 955, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.) Thus, “[a]ny words or conduct which ‘reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time …’ [citation] must be held to amount to an invocation of the Fifth Amendment privilege.” (People v. Burton (1971) 6 Cal.3d 375, 382.) In our view, however, appellant’s answer, whether considered alone or in conjunction with his subsequent remark, “There’s nothing you can do for me (unintell),” and the pauses between Skiles’s questions and appellant’s responses, is not reasonably inconsistent with a present willingness to discuss the case freely and completely, nor does it demonstrate an indication by appellant that he wished to remain silent (see Miranda, supra, 384 U.S. at pp. 473-474). Instead, it shows uncertainty on his part. Accordingly, Skiles was entitled to attempt to clarify whether appellant was waiving or invoking his rights (People v. Box, supra, 23 Cal.4th at p. 1194; People v. Johnson (1993) 6 Cal.4th 1, 27, disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879), and we are satisfied he did not exceed the bounds of what is constitutionally permissible.

Appellant relies in large part on People v. Harris (1989) 211 Cal.App.3d 640 (Harris). In that case, Sergeant Ward advised Harris of his Miranda rights and then asked if Harris wanted to talk to him. Harris replied, “‘Not really.’” Ward then terminated the interview, turned off the tape recorder, and had Harris indicate “‘No’” on the written waiver form. As Ward gathered up his notebook and the tape recorder, he informed Harris that he would be taken across the street and booked for murder. Harris seemed surprised and shocked. Ward then stated, “‘“I thought you were going to come back and straighten it out.”’” Harris acknowledged that he did want to do this, but Ward responded that he could not talk with Harris anymore because Harris had exercised his rights. Harris, who was 18 years old, said he was scared and wanted to talk to him, but his parents had told him they were going to hire a lawyer and that he should not talk to anyone until that time. Ward left the room, but, uncertain whether Harris was clearly waiving his rights, invoking them, or acting under his parents’ orders, he returned and asked Harris if he wanted to change his mind and talk. When Harris responded affirmatively, Ward ascertained that he understood his rights and was expressing his own voluntary decision to talk, and Ward then proceeded to interrogate him. Harris ultimately confessed to helping dispose of the victim’s body, then, two days later, to participation in the murder itself. (Harris, supra, at pp. 645-646.)

The Court of Appeal held that the initial confession should have been suppressed.¹⁵ It noted that in Rhode Island v. Innis (1980) 446 U.S. 291, the United States Supreme Court concluded “that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that police should know are reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v. Innis, supra, at pp. 300-303, fns. omitted; accord, People v. Boyer (1989) 48 Cal.3d 247, 273, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Examining the interaction between Ward and Harris in light of those principles, the Harris court reasoned:

15 It also held the second confession was invalid as having been tainted by the first confession. (Harris, supra, 211 Cal.App.3d at pp. 649-652.)

“While admittedly a difficult question, we believe the trial court reached the wrong conclusion; just as in Boyer there is no evidence here that [Harris] sought to discuss the case further, and we believe Sgt. Ward’s comment, ‘I thought you were going to come back and straighten it out,’ must be deemed the ‘functional equivalent’ of further questioning. Certainly, Sgt. Ward’s comment is understandable, particularly in light of his previous telephone communication with [Harris, in which Harris had said he intended to return to clear up the matter]. But the issue here is whether Sgt. Ward should have known his remark was likely to draw damaging statements from [Harris]. We think it is reasonably foreseeable that a suspect would react to Ward’s statement as a prodding invitation to further discussion about the incident.… Had Ward scrupulously respected [Harris’s] right to remain silent, he would not have encouraged further conversation about the murder. This same reasoning compels us to disagree with the trial court’s conclusion that [Harris] freely and voluntarily initiated the second interview, one minute after he unequivocally stated he did not want to talk.

“The People argue that Sgt. Ward’s statement was a proper attempt to clarify whether [Harris] intended to waive his constitutional rights. [Citation.] But here there was nothing ambiguous about [Harris’s] initial assertion of his right to remain silent. Thus, there was nothing for Sgt. Ward to clarify .… That Sgt. Ward himself was convinced [Harris] had invoked his right to remain silent is evident by his own actions: (1) he terminated the interview when [Harris] indicated he did ‘not really’ want to talk, and (2) he then had [Harris] sign ‘No’ next to the appropriate box on the admonishment form. [Harris’s] equivocation came later in response to Ward’s subsequent invitation, a prod that can only be viewed under the circumstances as reasonably likely to chip away at [Harris’s] resolve to remain silent and thereby to dishonor his Fifth Amendment privilege against compulsory self-incrimination.” (Harris, supra, 211 Cal.App.3d at pp. 648-649.)

People v. Peracchi (2001) 86 Cal.App.4th 353 (Peracchi), which appellant also cites, is similar. In that case, Peracchi was read his rights and stated that he understood them. When asked whether, having those rights in mind, he wanted to talk about the charges on which he was being arrested, he replied that he did not think so and did not think he could talk at that point. When asked why, he stated that he felt his mind was not clear enough right then, and that it was not a good time. The officer asked the reason, whereupon Peracchi said he guessed he did not want to discuss it right then. When the officer asked what he wanted, Peracchi replied, “‘“I don’t want to discuss it right now.”’” [T]he officer asked whether it was because Peracchi was too tired; Peracchi gave a negative response and began to talk about the incident. (Id. at pp. 358-359.)

On appeal, we held that the trial court erred in concluding Peracchi’s statement was voluntarily made. We explained:

“After being read his Miranda rights and asked whether he was willing to waive them, Peracchi stated he did not think he could talk at that moment. Although his initial statements to the officer regarding whether he was willing to waive his rights may have been ambiguous …, his intent to remain silent became clear through further questioning. Ultimately, Peracchi stated, ‘I don’t want to discuss it right now,’ clearly indicating that he intended to invoke his right to remain silent. Indeed, the officer’s questions assumed that [Peracchi] did not wish to speak with them then and the questions focused solely on the reason why he did not want to do so. Unlike the cases respondent relied upon, the questions here were not directed at whether Peracchi was invoking his right to silence nor were they clarifying whether he understood his rights. Instead, the questions asked why he did not wish to waive his rights. This inquiry itself assumes that Peracchi had invoked his right to remain silent. Officers have no legitimate need or reason to inquire into the reasons why a suspect wishes to remain silent. [¶] … [¶]

“In Michigan v. Mosley [(1975)] 423 U.S. 96, the United States Supreme Court … held that the admissibility of a statement made by a suspect after that person invoked his or her right to silence depended upon whether the right to cut off questioning was ‘scrupulously honored.’ One can hardly contend that Peracchi’s right to remain silent was scrupulously honored. Despite Peracchi’s invocation of his right to remain silent, the officer persisted in asking him questions regarding why he did not wish to speak with the officers at that time without even a momentary cessation in questioning. It was only after this repeated questioning that Peracchi eventually decided to give the officer a shortened version of the events. Because Peracchi had already invoked his right to remain silent, and the officer refused to scrupulously honor that request, Peracchi’s statements should have been suppressed.” (Peracchi, supra, 86 Cal.App.4th at pp. 361-362, fns. omitted.)

Neither Harris nor Peracchi is on point here, because in each of those cases, the suspect invoked his right to remain silent. Here, by contrast, appellant expressed uncertainty as to whether he wished to talk. Under the circumstances, Skiles was permitted to attempt to clarify his intentions. (See People v. Wash, supra, 6 Cal.4th at pp. 238-239.) Skiles’s questions were directed at obtaining that clarification; they were not the type of questions that an officer should know are reasonably likely to elicit an incriminating response. (See, e.g., Rhode Island v. Innis, supra, 446 U.S. at pp. 301-303; People v. Huggins (2006) 38 Cal.4th 175, 198; People v. Haley (2004) 34 Cal.4th 283, 301-303 & cases cited; People v. Wash, supra, 6 Cal.4th at pp. 238-239.) “This is not a case … where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” (Michigan v. Mosley, supra, 423 U.S. at pp. 105-106.)

In light of the foregoing, appellant was not entitled to suppression of his statement.¹⁶ This being the case, the second half of the statement, which followed Skiles reminding appellant of his Miranda rights after the interview was paused so the tape could be changed, is likewise not subject to exclusion. “Because the tree was not poisonous, its fruit was not tainted.” (People v. Mickey (1991) 54 Cal.3d 612, 652; accord, Colorado v. Spring, supra, 479 U.S. at pp. 571-572.)

16 Given our conclusion, we need not separately discuss what occurred with a view toward appellant’s right to counsel, as opposed to his right to remain silent.

II

JOSE JIMINEZ’S TESTIMONY

Appellant contends the trial court violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution by admitting Jose Jiminez’s testimony.

A. Background

During in limine motions, the parties argued over the admissibility of Jose Jiminez’s expected testimony. Defense counsel informed the court that, according to the report of Zavala’s investigator, Jiminez said he overheard appellant say, in the presence of Vidal, Zavala, and the Soto brothers, “we finally got that nigger.” Vidal responded, “he won’t be bothering us anymore.” Appellant then told the others that if they said anything different than what he had told them to say, he was going to stick a broom handle “up their ass.” Although appellant did not challenge admission of his own alleged statements, he asked the court to exclude Vidal’s response as inadmissible hearsay, and because “us” was vague and ambiguous. The prosecutor responded that Vidal’s statement was made in appellant’s presence and “us” could be understood in the context of the conversation, and he argued that the participants were still talking about a conspiracy. Defense counsel countered that any conspiracy was no longer in existence when the conversation took place, and he argued the hearsay was inadmissible pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford), Bruton v. United States (1968) 391 U.S. 123, and People v. Aranda (1965) 63 Cal.2d 518 (Aranda).¹⁷

17 Aranda was partially abrogated by constitutional amendment as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465.

Although rejecting the notion Vidal’s statement could be viewed as having been made in furtherance of a conspiracy, the court concluded it was admissible as an adoptive admission, as well as because it showed the relationship between Vidal and appellant. The court ruled that the meaning of “us” was a question for the jury.

At trial, Jiminez testified that he was contacted by Zavala’s investigator, Ruben Armenta, in July 2001. Jiminez related to Armenta that, sometime in the couple of days between when Eric Jones was in the news and Zavala’s arrest, he was present in the paint shed in back of Zavala’s home when he overheard a conversation between appellant, Zavala, and Vidal. While Jiminez knew the Soto brothers, he could not recall whether either of them was present.

Although Jiminez professed at trial not to remember what was said during the conversation, he confirmed that he gave Armenta an accurate and truthful statement. Domingo Flores, an investigator from the district attorney’s office, went over that statement with Jiminez about a month and a half before trial. Jiminez acknowledged telling Flores that he heard appellant say, “we finally got that nigger[,]” then Vidal responded, “he won’t be bothering us anymore[,]” and appellant then told the other individuals who were present that if they said anything different than what he had told them to say, he was going to “stick a broom handle up their ass[.]” Jiminez subsequently told Cynthia Dupuis, appellant’s investigator, that the conversation occurred on January 27, 2001, and that Vidal was the one who commented about having gotten the victim and that he would not be bothering them anymore.

Jurors subsequently were instructed on the use of adoptive admissions, to wit: “If you should find from the evidence that there was an occasion when the defendant one, under conditions which reasonably afforded him an opportunity to reply; two, failed to make a denial in the face of an accusation expressed directly to him or in his presence, charging him with a crime for which the defendant is now on trial or tending to connect him with its commission; and three, that he heard the accusation and understood its nature, then the circumstance of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation thus made was true. [¶] Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence and conduct of the accused in the face of it. Unless you find that the defendant’s silence and conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard his statement.”

B. Analysis

As was the case at trial, appellant does not challenge admission of Jiminez’s testimony concerning what he himself said. Instead, he says Vidal’s statement, as related by Jiminez, constituted inadmissible hearsay.¹⁸

18 Appellant appears to assume Vidal said only, “he won’t be bothering us anymore.” We will do likewise, although our analysis would be the same even if Vidal, and not appellant, said, “we finally got that nigger.” In addition, since the trial court did not admit the statement under the coconspirator exception to the hearsay rule (Evid. Code, § 1223), we agree with respondent that we need not decide whether the statement qualified for admission on that basis. Under the circumstances, respondent’s failure to address appellant’s argument on this point does not, contrary to appellant’s contention, constitute a concession by respondent that appellant’s claim has merit.

“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Except as provided by law, it is inadmissible. (Id., subd. (b).) However, “‘[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.’ (Evid. Code, § 1221.) Under this provision, ‘If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.’ [Citations.] ‘For the adoptive admission exception to apply, … a direct accusation in so many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1189; accord, People v. Roldan (2005) 35 Cal.4th 646, 710.)

Appellant concedes there was no evidence he did not hear Vidal’s statement. Nor is there any suggestion he failed to understand it, had no opportunity to reply, or failed to speak because he was relying on his Fifth Amendment rights. (See People v. Roldan, supra, 35 Cal.4th at p. 711.) Instead, he argues Vidal’s statement was not made under circumstances that normally would call for a response from appellant, because Vidal’s use of the pronoun “us” was unclear and ambiguous and he was not necessarily including appellant as one of the people who would no longer be bothered by Jones.

We disagree. The evidence showed appellant was a participant in the conversation. In fact, there was evidence that he was the first one to use the inclusive pronoun “we.” In any event, if Vidal had not been including appellant in “us,” one would have expected appellant to clarify that the statement did not apply to him. Instead, he responded with a threat that, by its reference to the sexual assault of Jones, implicitly confirmed his participation in what happened. Accordingly, “[t]he circumstances warranted presenting the evidence to the jury and letting the jury decide what weight to give it. ‘To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.’ [Citation.] The court correctly instructed the jury how to consider the evidence. [Citation.]” (People v. Riel, supra, 22 Cal.4th at pp. 1189-1190 [rejecting argument that, when one assailant said “they” did something, it was unclear whether he was including defendant or only meant himself & another participant; circumstances supported conclusion reference was to all three, as all three were present, defendant spoke first, & assailant whose statement was challenged was responding to question asked of defendant]; see also People v. Jurado (2006) 38 Cal.4th 72, 116-117 [witness properly was allowed to relate accomplice’s out-of-court statement that “we” took care of problem & “we” dumped body as adoptive admission by defendant where defendant was sitting on couch with accomplice, circumstances called for denial or protest if statement was inaccurate, & nothing prevented defendant from responding]; People v. Roldan, supra, 35 Cal.4th at pp. 710-711 [witnesses were properly allowed to recount incriminating comments they overheard while defendant and two others discussed crime; that witnesses did not specifically attribute each comment to particular speaker was irrelevant where defendant heard comments, had opportunity to reply, & comments were made under circumstances that normally would call for response]; People v. Edelbacher (1989) 47 Cal.3d 983, 1011-1012 [statement to defendant need not be free from all ambiguity & clearly accusatory]; People v. Avalos (1979) 98 Cal.App.3d 701, 711 [defendant responded, “‘Oh Shit,’” to statement implicating him in crimes; because whether response was denial or failure to deny was question of fact, jury should have been instructed to disregard accusatory statement unless it found defendant’s conduct was admission that accusation was true].) In short, the trial court did not err by admitting the challenged evidence as an adoptive admission.

Nor did admission of the evidence violate appellant’s rights under the confrontation clause of the Sixth Amendment to the United States Constitution.¹⁹ In this regard, it is important to note that any Sixth Amendment concerns focus on Vidal’s out-of-court statement, not Jiminez’s in-court recitation of that statement. Appellant confronted and cross-examined Jiminez at trial, thereby allowing jurors to determine whether he was a reliable and credible witness and what weight, if any, to afford his testimony. (See People v. Cudjo (1993) 6 Cal.4th 585, 608-609.)

19 Respondent contends appellant’s constitutional claims are forfeited for failure to raise them in the trial court. The question is a close one. Even where a Sixth Amendment-based claim is at issue, “[a] general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.” (People v. Marks (2003) 31 Cal.4th 197, 228; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; see People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8 [bare references to confrontation rule & inability to cross-examine insufficient to preserve Sixth Amendment claim for review].) On the other hand, “[a]n objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. [Citations.] In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented. [Citations.]” (People v. Scott (1978) 21 Cal.3d 284, 290.) In light of defense counsel’s repeated references to Crawford, supra, 541 U.S. 36, and the manner in which the court and attorneys discussed the issue, we will assume the confrontation claim has been sufficiently preserved.

“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.’ In Crawford v. Washington[, supra,] 541 U.S. 36, 53-54 …, [the United States Supreme Court] held that this provision bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ A critical portion of this holding … is the phrase ‘testimonial statements.’ Only statements of this sort cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” (Davis v. Washington (2006) 547 U.S. ___, ___ [126 S.Ct. 2266, 2273].)

“Various formulations of this core class of ‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ [citation]; ‘extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ [citation].” (Crawford, supra, 541 U.S. at pp. 51-52.) As is pertinent here, “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.’ [Citation.]” (Id. at p. 51.)

“Prior to Crawford, the admission of a hearsay statement under a firmly-rooted exception to the hearsay rule or when there were indicia of reliability did not violate a defendant’s right of confrontation. (Ohio v. Roberts (1980) 448 U.S. 56, 66 [] [(Roberts)].) After Crawford, a ‘nontestimonial’ hearsay statement continues to be governed by the Roberts standard, but the admission of a ‘testimonial’ hearsay statement constitutes a violation of a defendant’s right of confrontation unless the declarant is unavailable to testify at trial and the defense had a prior opportunity for cross-examination. [Citation.]” (People v. Corella (2004) 122 Cal.App.4th 461, 467.)²⁰ Vidal’s statement, made as it was to a group of acquaintances in (they thought) private, was clearly not “testimonial” within the meaning of Crawford and the Sixth Amendment. (See People v. Butler (2005) 127 Cal.App.4th 49, 59.)

20 Crawford overruled Roberts, insofar as testimonial hearsay is concerned. (Crawford, supra, 541 U.S. at pp. 59-62.)

Under the Roberts analysis, “a hearsay exception [is] ‘firmly rooted’ if, in light of ‘longstanding judicial and legislative experience,’ [citation], it ‘rest[s] [on] such [a] solid foundatio[n] that admission of virtually any evidence within [it] comports with the “substance of the constitutional protection.”’ [Citation.].” (Lilly v. Virginia (1999) 527 U.S. 116, 126 (plur. opn. of Stevens, J.).) The adoptive admissions exception meets this standard. (People v. Jennings (2003) 112 Cal.App.4th 459, 472; see United States v. Monks (9th Cir. 1985) 774 F.2d 945, 952.) Moreover, Vidal’s statement bore indicia of reliability for the very reasons it did not constitute testimonial hearsay.

“The right of confrontation is not violated when the jury hears evidence, from a witness subject to cross-examination, relating a defendant’s own out-of-court statements and adoptive admissions. [Citations.]” (People v. Jurado, supra, 38 Cal.4th at p. 117.) “[B]y reason of the adoptive admissions rule, once the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions, and are admissible on that basis as a well-recognized exception to the hearsay rule. [Citation.] Being deemed the defendant’s own admissions, we are no longer concerned with the veracity or credibility of the original declarant. Accordingly, no confrontation right is impinged when those statements are admitted as adoptive admissions without providing for cross-examination of the declarant.” (People v. Silva (1988) 45 Cal.3d 604, 624.) This is so even in light of Crawford. (See People v. Roldan, supra, 35 Cal.4th at p. 711, fn. 25.) Additionally, and as previously noted, jurors were instructed that evidence of an accusatory statement was not received to prove the truth of that statement, but only as it supplied meaning to the silence and conduct of the accused in the face of it, and that, unless they found such silence and conduct to indicate an admission that the accusatory statement was true, they were to disregard the statement. Because Vidal’s statement was admitted for a nonhearsay purpose, appellant’s Sixth Amendment rights were not implicated. (People v. Combs (2004) 34 Cal.4th 821, 843.)²¹

21 Respondent notes that the trial court also admitted Vidal’s statement for the nonhearsay purpose of showing his relationship with appellant. We agree that, in light of appellant’s attempt, in his statement to Skiles, to minimize his relationship with Vidal and the prosecutor’s use of aiding and abetting and conspiracy theories of liability, this was a relevant purpose. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1204.) Appellant says that if this is true, then a “substantial” instructional error occurred, because the jury was never instructed that Jiminez’s testimony was admitted for that limited purpose. Appellant is mistaken, since, except in “‘an occasional extraordinary case’” – which this is not – trial courts have no duty to instruct, sua sponte, on the limited admissibility of evidence. (People v. Lang (1989) 49 Cal.3d 991, 1020; accord, People v. Clark (1992) 3 Cal.4th 41, 130-131.)

III

SUFFICIENCY OF THE EVIDENCE

Having determined that appellant’s statement to Skiles and Jiminez’s testimony were properly admitted into evidence, we turn now to appellant’s claim the evidence was insufficient to sustain his convictions. Appellant presents a complicated three-part argument, asserting (1) there was insufficient evidence to support murder, special-circumstance, and felony-murder findings under the theory appellant was a direct participant and personally committed the acts; (2) there was insufficient evidence to support murder, special-circumstance, or felony-murder findings, or the substantive crimes of torture, sexual penetration, and kidnapping, under a theory appellant knowingly aided and abetted or conspired to commit those acts; and (3) there was insufficient evidence to sustain appellant’s convictions on a theory that torture, electrocution, sodomy, kidnapping, and murder were reasonably foreseeable consequences of assault, the only crime appellant purportedly aided and abetted or conspired to commit.

We need not concern ourselves with the first and third permutations of appellant’s argument, as the first addresses a theory upon which appellant was not tried, while the third addresses theories we can tell the jury rejected. With respect to the former, the prosecutor’s assertion that appellant was an active participant in events was premised on the theory appellant was an aider and abettor or coconspirator. Appellant was not tried on the theory he personally committed the various criminal acts. With respect to the latter, a conspiracy was defined for jurors not in terms of an agreement and specific intent to commit some unspecified crime, but expressly in terms of an agreement and intent to commit the uncharged crime of assault with force likely to produce great bodily injury. Jurors were told that a member of a conspiracy was guilty not only of the crime he and his confederates conspired to commit, but also the natural and probable consequence of any crime of a coconspirator to further the objective of the conspiracy, and they were instructed on how to determine whether the charged offenses were the natural and probable consequences of the agreed-upon objective of the conspiracy. We know jurors rejected the notion of a conspiracy to commit assault, however: Jurors were further instructed that murder predicated solely on such a conspiracy constituted only second degree murder, yet they returned a verdict of murder in the first degree. They were further instructed that if appellant were found guilty, as a coconspirator, of one of the charged felonies solely because that crime was a natural and probable consequence of an assault with force likely to produce great bodily injury, the charged felony could not be the basis for murder predicated on the felony-murder rule, or the special circumstance of murder in the commission of a felony. Jurors returned true findings on both felony-murder special circumstances; moreover, their verdict on the murder by torture special circumstance reflects an express finding of aiding and abetting with intent to kill.

Similarly, we can tell jurors rejected the theory appellant aided and abetted an uncharged assault. Jurors were told that, in order to find appellant guilty of a charged offense under the natural and probable consequences doctrine, they had to find that the uncharged crime of assault with force likely to produce great bodily injury was committed, that appellant aided and abetted that crime, that a coprincipal committed the charged offenses, and that those offenses were natural and probable consequences of the uncharged assault. As was the case with conspiracy, jurors were instructed that murder predicated solely on aiding and abetting assault with force likely to produce great bodily injury constituted only second degree murder, but they returned a verdict of first degree murder.²² Moreover, the prosecutor clearly did not rely on the natural and probable consequences theory in his argument to the jury, barely mentioning it and at one point telling jurors it did not apply to the facts of the case.

22 No claim of instructional error is raised; hence, we express no opinion concerning the correctness of the instructions.

In light of the foregoing, it is apparent jurors convicted appellant as an aider and abettor of the charged crimes, without reference to the natural and probable consequences doctrine. Because, as we shall explain, the evidence is sufficient to uphold the convictions and special-circumstance findings on that theory, we address it alone. The record does not suggest, much less demonstrate a reasonable probability, that the jury relied on any factually unsupported theory. (See, e.g., People v. Sanchez (2001) 26 Cal.4th 834, 851-852; People v. Johnson, supra, 6 Cal.4th at p. 42; People v. Guiton (1993) 4 Cal.4th 1116, 1129.)

A. Applicable Legal Principles

The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and it applies equally to special circumstances (People v. Mickey, supra, 54 Cal.3d at p. 678).

Citing People v. Toledo (1948) 85 Cal.App.2d 577 (Toledo), appellant contends the People were bound by the exculpatory evidence they presented by way of appellant’s statement to Skiles, and that this constrains our evidentiary review. In Toledo, the defendant was charged with murder and convicted of manslaughter. He admitted striking the fatal blow, but claimed self-defense. The physical evidence was consistent with his version of events. Construing former section 1105,²³ the appellate court held that a defendant need only raise a reasonable doubt with respect to self-defense; that the defendant’s statement did so; and that there was no rational way to believe the defendant’s concession that he struck the victim, yet reject the remaining exculpatory portion of his statement. Accordingly, the appellate court ruled, the record did not support the defendant’s manslaughter conviction. (Toledo, supra, 85 Cal.App.2d at pp. 579-582.)

23 See now section 189.5. Subdivision (a) of this statute, which is substantively unchanged from subdivision (a) of former section 1105, provides: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” (Italics added.)

Based on Toledo, it has been stated that “if the prosecution presents as a part of its case a statement of the defendant evidencing justification for the alleged crime, the prosecution is bound by that evidence in the absence of proof to the contrary. [Citations.]” (People v. Griego (1955) 136 Cal.App.2d 51, 56, italics added.) As has been recognized, however, “the so-called Toledo doctrine (whose genesis seems to have been merely an argument offered on appeal) actually refers to a principle of judicial review invoked in homicide prosecutions obviating a defendant’s burden of showing mitigation or justification where the prosecution’s proof itself tends to show same or a lesser unlawful homicide. [Citations.] The rule in its amended form is properly restricted to those cases where ‘all the prosecution evidence points to excuse or mitigation. If there is substantial evidence incompatible with the theory of excuse or mitigation, the jury may consider all the evidence and determine whether the act amounted to unlawful homicide. [Citations.]’ [Citation.] To the extent that the doctrine is founded upon a notion that the prosecution is bound by their witnesses’ statements [citation] on the antiquated theory of vouchsafing one’s own witnesses [citation], that theory has long since been discarded in favor of the modern rule allowing impeachment of a witness by any party, ‘including the party calling him.’ [Citations.] In the final analysis the question of defendant’s guilt must be resolved from all the evidence considered by the jury. [Citations.]” (People v. Ross (1979) 92 Cal.App.3d 391, 400, fn. omitted; accord, Matthews v. Superior Court (1988) 201 Cal.App.3d 385, 393-394.)

Here, appellant’s statement did not purport to show his commission of a homicide under circumstances involving justification or excuse²⁴ or a lesser unlawful homicide,²⁵ but instead his lack of knowing involvement in the various charged offenses, including murder. Assuming this is the type of excuse or mitigation referred to by Toledo and cases interpreting it – which we doubt – “‘it does not necessarily follow that appellant’s account of the killing, though uncontradicted by direct evidence, should control the jury.’” (People v. Acosta (1955) 45 Cal.2d 538, 541, quoting People v. Salaz (1924) 66 Cal.App. 173, 181.) “[C]redibility is governed by more than just the words transcribed by a court reporter. A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so. [Citations.]” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Appellant’s own statement (particularly his account of leaving and returning to the Soto residence at will) and Jiminez’s testimony furnished ample rational grounds for disbelieving appellant’s claim of lack of knowing involvement. Accordingly, the prosecutor was not bound by, and the jury was entitled to reject, those portions of appellant’s statement that were clearly self-serving or implausible under the circumstances (People v. Silva (2001) 25 Cal.4th 345, 369; People v. Wharton (1991) 53 Cal.3d 522, 547), and we review the record accordingly.

24 Homicide is excusable “1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. [¶] 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.” (§ 195.)

25 “Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [¶] (a) Voluntary – upon a sudden quarrel or heat of passion. [¶] (b) Involuntary – in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.… [¶] (c) Vehicular .…” (§ 192.) Manslaughter also occurs when a defendant kills another person because the defendant actually, but unreasonably, believes he or she is in imminent danger of death or great bodily injury. (In re Christian S. (1994) 7 Cal.4th 768, 771.)

As previously explained, we focus on appellant’s liability as an aider and abettor of the charged offenses. Someone who aids and abets is a principal in the crime(s) committed. (§ 31.) “To be guilty of a crime as an aider and abettor, a person must ‘aid[] the [direct] perpetrator by acts or encourage[] him [or her] by words or gestures.’ [Citations.] In addition, except under the natural-and-probable-consequences doctrine [citations], which is not implicated on the facts presented here, the person must give such aid or encouragement ‘with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,’ the crime in question. [Citations.] When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person ‘must share the specific intent of the [direct] perpetrator,’²⁶ that is to say, the person must ‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s commission of the crime.’ [Citation.]” (People v. Lee (2003) 31 Cal.4th 613, 623-624; see People v. Beeman (1984) 35 Cal.3d 547, 560.) In short, “proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus – a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea – knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus – conduct by the aider and abettor that in fact assists the achievement of the crime. [Citation.]” (People v. Perez (2005) 35 Cal.4th 1219, 1225.)

26 The direct (actual) perpetrator must harbor whatever mental state is required for each crime charged. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)

The doctrine of aiding and abetting “‘“snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime.” [Citation.]’ [Citation.] Aiding and abetting does not require participation in an agreement to commit an offense, but merely assistance in committing the offense. [Citation.]” (People v. Morante (1999) 20 Cal.4th 403, 433, fn. omitted.) However, “if a person in fact aids, promotes, encourages or instigates commission of a crime, the requisite intent to render such aid must be formed prior to or during ‘commission’ of that offense. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) This does not mean advance knowledge is a prerequisite for liability (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742); “[a]iding and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as the criminal act itself. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 532.) Moreover, “it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.]” (Id. at pp. 531-532.)

In determining whether the evidence was sufficient to support appellant’s convictions, we apply these principles to the elements of the charged offenses. With respect to first degree murder, appellant’s jury was presented with theories of premeditation and deliberation, felony murder predicated upon kidnapping and penetration with a foreign object, and murder by means of torture.²⁷ Where premeditated murder is at issue, “[e]vidence concerning motive, planning, and the manner of killing are pertinent to the determination of premeditation and deliberation, but these factors are not exclusive nor are they invariably determinative. [Citation.]” (People v. Silva, supra, 25 Cal.4th at p. 368; see People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Insofar as felony murder is concerned, “‘[w]hen the prosecution establishes that a defendant killed while committing one of the felonies section 189 lists …, “by operation of the statute the killing is deemed to be first degree murder as a matter of law.”’ [Citation.] Under the felony-murder rule, a strict causal or temporal relationship between the felony and the murder is not required; what is required is proof beyond a reasonable doubt that the felony and murder were part of one continuous transaction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175.) “‘The mental state required is simply the specific intent to commit the underlying felony; neither intent to kill, deliberation, premeditation, nor malice aforethought is needed. [Citations.]’” (People v. Hart (1999) 20 Cal.4th 546, 608.) As for murder by means of torture, “‘[m]urder by torture “is ‘murder committed with a wil[l]ful, deliberate and premeditated intent to inflict extreme and prolonged pain.’” [Citation.] “The culpable intent is one to cause pain for ‘“the purpose of revenge, extortion, persuasion or for any other sadistic purpose.”’” [Citation.] There is no requirement that the victim be aware of the pain. [Citation.]’ [Citation.] ‘“However, there must be a causal relationship between the torturous act and death, as Penal Code section 189 defines the crime as murder ‘by means of’ torture. [Citation.]” [Citation.]’ [Citation.] [¶] ‘The finding of murder-by-torture encompasses the totality of the brutal acts and the circumstances which led to the victim’s death.’ [Citation.] ‘[F]or purposes of proving murder by torture, the intent to inflict extreme pain “may be inferred from the circumstances of the crime, the nature of the killing, and the condition of the victim’s body.” [Citation.]’” (People v. Elliot (2005) 37 Cal.4th 453, 466-467.) While not necessarily determinative of intent, the severity of the victim’s wounds is probative of the issue. (People v. Mincey (1992) 2 Cal.4th 408, 433.)

27 Section 189 provides in pertinent part: “All murder which is perpetrated by means of … torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of … kidnapping, … or any act punishable under Section … 289, … is murder of the first degree.”

Turning to the special circumstances alleged, “[t]he felony-murder special circumstance applies to a murder committed while the defendant was engaged in, or was an accomplice in the commission of, the attempted commission of, or the immediate flight after committing or attempting to commit, various enumerated felonies, including, as relevant here, [kidnapping or foreign object penetration].²⁸ [Citation.] A strict causal or temporal relationship between the felony and the murder is not required; what is required is proof beyond a reasonable doubt that the defendant intended to commit the felony at the time he killed the victim and that the killing and the felony were part of one continuous transaction. [Citations.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87.)²⁹ However, “[i]n order to support a finding of special circumstances murder, based on murder committed in the course of [a felony enumerated in section 190.2, subdivision (a)(17)], against an aider and abettor who is not the actual killer, the prosecution must show that the aider and abettor had intent to kill or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subds. (c), (d).)” (People v. Proby (1998) 60 Cal.App.4th 922, 927, fn. omitted; see Tison v. Arizona (1987) 481 U.S. 137, 157-158.) The torture-murder special circumstance (§ 190.2, subd. (a)(18)) applies where the murder was intentional and involved the infliction of torture. (People v. Bemore (2000) 22 Cal.4th 809, 842.) It does not require proof that the acts of torture caused the victim’s death. (Id. at p. 843.)

28 The statute specifically refers to “[r]ape by instrument in violation of Section 289.” (§ 190.2, subd. (a)(17)(K).) Aside from the issue of his own culpability, appellant makes no claim that the special circumstance does not apply to what was done to Eric Jones.

29 By the time of Eric Jones’s murder, the law no longer required that the defendant have a purpose for kidnapping apart from the murder in order to sustain a kidnap-felony-murder special circumstance finding. (§ 190.2, subd. (a)(17)(M); compare People v. Riel, supra, 22 Cal.4th at p. 1201.)

With regard to the remaining substantive offenses, count 2 of the information charged appellant with torture in violation of section 206. That statute provides: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain.” “As so defined, torture has two elements: (1) the infliction of great bodily injury on another; and (2) the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or any sadistic purpose.” (People v. Lewis (2004) 120 Cal.App.4th 882, 888, fn. omitted.) “Torture focuses upon the mental state of the perpetrator. [Citation.]” (People v. Massie (2006) 142 Cal.App.4th 365, 371.) “Courts have interpreted intent to inflict ‘cruel’ pain and suffering as intent to inflict extreme or severe pain. [Citation.]” (People v. Burton (2006) 143 Cal.App.4th 447, 452.) “[R]evenge, extortion, and persuasion are self-explanatory. Sadistic purpose encompasses the common meaning, ‘“the infliction of pain on another person for the purpose of experiencing pleasure.”’ [Citation.] While sadistic pleasure is often sexual, the statute does not require a sexual element. [Citation.]” (People v. Massie, supra, at p. 371.) “Absent direct evidence of … intent, the circumstances of the offense can establish the intent to inflict extreme or severe pain. [Citations.]” (People v. Burton, supra, at p. 452.) “Torture does not require the defendant act with premeditation and deliberation, and it does not require that he intend to inflict prolonged pain. [Citation.] Accordingly, the length of time over which the offense occurred is relevant but not necessarily determinative. [Citation.] Likewise, the severity of the wounds inflicted is relevant but not necessarily determinative. [Citation.]” (People v. Massie, supra, at p. 371.) “Also, a jury may infer intent to cause extreme pain from a defendant who focuses his attack on a particularly vulnerable area … rather than indiscriminately attacking the victim. [Citation.]” (People v. Burton, supra, at p. 452.) Finally, although the statute requires the infliction of great bodily injury, it does not require that a defendant personally inflict the torture. (People v. Lewis, supra, 120 Cal.App.4th at pp. 888-889.)

Count 3 of the information charged appellant with kidnapping in violation of section 207, subdivision (a), which provides: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” To establish this offense, “the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. [Citation.]” (People v. Jones (2003) 108 Cal.App.4th 455, 462, fn. omitted.)

The remaining counts of the information charged variant forms of foreign object penetration, in violation of section 289 – “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury” (id., subd. (a)); “with another person who is under 18 years of age” (id., subd. (h)); and “voluntarily acting in concert with another person, by force or violence and against the will of the victim, …, either personally or by aiding and abetting the other person,” as proscribed by section 264.1 The elements of section 289, subdivisions (a) and (h) are apparent, for our purposes, from the wording of the statute. Section 264.1 demonstrates the Legislature’s recognition that sexual assault “is even more reprehensible when committed by two or more persons. [Citation.]” (People v. Jones (1989) 212 Cal.App.3d 966, 969.) Thus, the statute increases punishment for specified offenses, including the forcible violation of section 289, committed “in concert,” in order “to discourage ‘gang type’ sexual assaults. [Citation.]” (People v. Jones, supra, at p. 969.) The statute covers both the person who actually commits the physical act and the person who aids and abets; the latter need neither physically participate in the sexual assault nor be personally present during its commission. (People v. Lopez (1981) 116 Cal.App.3d 882, 886.) Although acting in concert is not necessarily synonymous with aiding and abetting (People v. Jones, supra, at p. 969), in order to hold a defendant liable for sexual assault in concert as an aider and abettor, the prosecution must prove he or she had the requisite intent for aiding and abetting set out in People v. Beeman, supra, 35 Cal.3d at page 560.

B. Analysis

“Whether a person has aided and abetted in the commission of a crime is a question of fact, and on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment.” (In re Juan G. (2003) 112 Cal.App.4th 1, 5, fn. omitted.) Although the mere presence of the defendant at the scene of the crime does not, standing alone, establish aiding and abetting (People v. Villa (1957) 156 Cal.App.2d 128, 134), it is one factor to be considered. Other relevant factors include companionship and conduct before and after the offense. (In re Juan G., supra, 112 Cal.App.4th at p. 5; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)

We have set out the record evidence at length, ante, and need not repeat it here. We conclude it is sufficient to support a finding, by a rational trier of fact, of every element of the various offenses beyond a reasonable doubt. The evidence and reasonably drawn inferences showed appellant’s companionship with the other participants – particularly Vidal – both before and after the crimes, a companionship he tried to downplay in his statement to Skiles. Appellant had a motive – the loss of money on the stolen gun Jones had sold him, together with the suggestion Jones had tried to pin the theft on him, and rumors Jones was going to try to rob him – and he knew Vidal had a motive, as Jones had tried to steal Vidal’s car. Although the fact dinner had been ordered suggests appellant and Vidal did not know the exact moment events would start to unfold, as soon as Gerardo Soto telephoned appellant’s house and told him Jones was there and to bring Vidal, appellant immediately did so, not even waiting for the food to be delivered or telling his wife where he was going. The overall picture is one of preplanned action against Jones, with appellant and Vidal simply waiting to hear that Jones had been lured into the group’s clutches.³⁰ (See People v. Hill (1998) 17 Cal.4th 800, 851-852.)

30 In fact, jurors rationally could have concluded appellant and Vidal were not actively involved in capturing Jones by design, since it would be reasonable for the perpetrators to assume Jones would be wary of being in the presence of those who had motives for retaliation against him, and thus that Jones would be easier to ensnare if appellant and Vidal were not around.

Even assuming appellant was not in on the plan from the outset, he admitted knowing Jones would be confronted and beaten; to the extent he professed not to know anything beyond that, his statement suggested either the others told him what they were going to do upon his arrival at the Soto residence, or he almost immediately figured it out.³¹ As we have stated, advance knowledge is not a prerequisite for liability as an aider and abettor; aiding and abetting can be committed on the spur of the moment. (People v. Swanson-Birabent, supra, 114 Cal.App.4th at p. 742; People v. Nguyen, supra, 21 Cal.App.4th at p. 532.) What matters is whether the intent to render aid was formed prior to or during commission of the offense. (People v. Cooper, supra, 53 Cal.3d at p. 1164.) Once appellant arrived at the residence, he saw Portugal with an AK-47. He knew Vidal was carrying a firearm. Both Portugal and Gerardo Soto pointed the AK-47 at Jones’s head during the beating. Jones was tied up, and was beaten and kicked by the group. He was beaten badly, with events occurring over the course of several hours, and was moaning from the pain. Appellant was instructed to obtain black plastic, which he believed would be used to wrap Jones. A reasonable inference is that it would be used for further torture or to dispose of Jones’s body. While appellant denied obtaining the plastic, he admitted obtaining the duct tape that bound Jones at the time he was killed. Although it was not Skiles’s interpretation of appellant’s statement, a rational inference can be drawn from the evidence that appellant left the Soto residence more than once, but always returned, despite being aware of what was happening there. A reasonable inference can also be drawn that he obtained the duct tape after hearing Vidal tell Jones that Jones was going to die. We find it particularly significant, as jurors reasonably could have, that appellant was permitted to come and go from the residence at will, yet never once did he refuse to return or use his freedom of action to contact authorities. Though not dispositive, failure to prevent the crimes is a factor that may be considered in determining aiding and abetting. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460; People v. Villa, supra, 156 Cal.App.2d at p. 134.)

31 Skiles asked appellant, “Did they tell you what they were going to do?” Appellant responded, “Nah, not till I got there and seen all that shit.” (Italics added.)

In light of the fact appellant could come and go at will, not only from the residence but between the house and garage, jurors reasonably could have inferred that, instead of merely trying to comfort Ebaniz and keep him calm, appellant actually took charge of the teenager, as Ebaniz was recognized as being the weak link and Vidal was worried he would talk. Appellant’s presence helped prevent Ebaniz from trying to leave and possibly alert authorities. In addition, appellant transported Ebaniz to watch the murder, thus further scaring him into silence. Vidal threatened to kill Ebaniz’s family, but made no threats against appellant. In fact, it was appellant who, according to Jiminez, subsequently threatened the others to keep them quiet and made specific reference to the sexual assault.³²

32 In re Michael T. (1978) 84 Cal.App.3d 907, on which appellant relies, does not persuade us differently. There, a liquor store clerk fatally shot a boy. In retaliation, Kenneth Washington shot and killed one of the clerks. Shortly before the shooting, two persons standing near the liquor store were warned by Michael to get out of the way because there was going to be a shooting at the store. At trial, however, one of these people denied that Michael was the person who had spoken to him, and the other stated he could not be positive because he was drunk at the time. There was testimony that Michael subsequently said, in Washington’s presence, something along the lines of, “‘We got the guy.’” On appeal from the juvenile court’s finding that Michael committed murder, the appellate court found no evidence Michael participated by rendering physical aid or as a conspirator, aside from the statements attributed to him and his presence near the scene of the crime. The appellate court found this evidence insufficient, as mere presence which does not itself assist the commission of the crime, or mere knowledge a crime is being committed and the failure to prevent it, do not amount to aiding and abetting. As for the statements, they may have been mere bravado; they were not proof beyond a reasonable doubt that Michael was admitting guilt for personal participation in the crime. (Id. at pp. 909-911.)

Under the circumstances, a rational trier of fact could have concluded that appellant knew of Vidal’s intent to torture, kidnap, and kill Jones, and aided and abetted by his presence, by obtaining the duct tape, and by taking charge of Ebaniz and transporting him to witness the murder. (See People v. Dyer (1963) 217 Cal.App.2d 176, 180.) A rational trier of fact could have further concluded appellant participated in the sexual assault, based on Jiminez’s recitation of his statements; in any event, the foreign object penetration was a species of torture and part of the same course of conduct. (See People v. Elliot, supra, 37 Cal.4th at p. 467.) Accordingly, sufficient evidence supports the various convictions and special circumstance findings.

IV

PROSECUTORIAL MISCONDUCT

Appellant next contends the trial court erred by denying a defense motion for mistrial due to prosecutorial misconduct, and that his convictions must be reversed because prejudicial misconduct occurred. In order to preserve such a claim for appeal, “a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety. [Citations.] A defendant will be excused from the requirement of making a timely objection and/or a request for admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request. [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1201.) “A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough.” (People v. Panah (2005) 35 Cal.4th 395, 462.) The futility exception will only be found to apply in extreme cases. (See People v. Boyette (2002) 29 Cal.4th 381, 432; People v. Hillhouse (2002) 27 Cal.4th 469, 501-502; People v. Riel, supra, 22 Cal.4th at pp. 1212-1213; People v. Hill, supra, 17 Cal.4th at pp. 820-821, 836.)

Where a defendant has preserved a claim of prosecutorial misconduct for review, we must first determine whether misconduct occurred. (People v. Welch (1999) 20 Cal.4th 701, 752.) “When a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.]” (People v. Panah, supra, 35 Cal.4th at p. 462; accord, e.g., People v. Samayoa (1997) 15 Cal.4th 795, 841.) “When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any or the complained-of remarks in an objectionable fashion.’ [Citations.] Moreover, prosecutors ‘have wide latitude to discuss and draw inferences from the evidence at trial,’ and whether ‘the inferences the prosecutor draws are reasonable is for the jury to decide.’ [Citation.]” (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.) In making the pertinent inquiry, “‘we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’ [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 657.) If we find misconduct occurred, we then determine “whether it is ‘reasonably probable that a result more favorable to the defendant would have occurred’ absent the misconduct. [Citation.]” (People v. Welch, supra, 20 Cal.4th at p. 753.) Where the trial court has made a ruling on a claim of prosecutorial misconduct, we review that ruling for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.)

Appellant contends misconduct occurred under both the federal and state tests. With respect to the state test, appellant says the prosecutor used deceptive methods to mislead or persuade the jury by not properly preparing Juanita Zavala for her testimony, and by stating a fact not in evidence in the form of a question, during the course of his examination of Ralph Arivzu, that he could not elicit from the witness. With respect to the federal test, appellant says instances of misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. In support for this claim, he points to what occurred with Juanita Zavala and Ralph Arivzu, together with other instances of alleged misconduct. To the extent possible, we will address these claims in order.

A. Juanita Zavala’s Testimony

In order to call into question the credibility of at least portions of appellant’s statement to Skiles, and apparently anticipating appellant would seek to deflect responsibility onto Vidal, either by claiming he committed unforeseeable crimes or as part of a duress defense, the prosecutor sought to establish the relationship between the two men. During in limine motions, he asserted that Juanita Zavala’s anticipated testimony would not be cumulative of other witnesses who had seen appellant with Vidal under innocuous conditions, because she could testify to appellant’s presence at the ranch a day or two after Jones’s death.

The prosecutor called Ms. Zavala as a witness at trial. This ensued immediately after she stated her name for the record:

“Q. And how is it that you are familiar with the defendant in this case, Keith Seriales?

“A. How do I know him?

“Q. Yes.

“A. Well, he’s Jorge Vidal’s boss.

“Q. And how is it that you know that?

“A. Because Jorge Vidal told me.

“MR. GIRARDOT [defense counsel]: Objection. Hearsay. [¶] Move to strike both answers.

“THE COURT: Sustained.”

The prosecutor proceeded to question Ms. Zavala about whether she was acquainted with the Soto brothers, whether Vidal was ever out at the ranch, and the incident following Jones’s death in which Vidal and the Sotos offered to help her burn her trash. During cross-examination, defense counsel elicited that Ms. Zavala had seen appellant and Vidal at the ranch probably three times.

At the conclusion of Ms. Zavala’s testimony, Mr. Cross, cocounsel for appellant, requested a mistrial based on the statement that appellant was Vidal’s boss. He argued it was inadmissible hearsay, not contained in any report, and lacked foundation, and he suggested the prosecutor had been trying to get that important piece of information into evidence by various means. The prosecutor agreed that Ms. Zavala’s depiction of appellant as Vidal’s boss was not in any of the reports. The court stated, “That’s not a basis for mistrial,” noted that it had sustained the immediate objection by Mr. Girardot, and offered to admonish the jury. Cross replied that he did not want the court to bring the testimony to jurors’ attention, but asked that the court admonish them that whenever an objection was sustained, they were to disregard it. The court agreed to do so at a time of the defense’s choosing. At the close of that day’s court session, Cross clarified that the basis for his mistrial motion was the denial of a fair trial pursuant to the Sixth and Fourteenth Amendments to the United States Constitution. He also asked the court to advise the jury, at the next opportunity, to disregard the answer if an objection was sustained, and to not speculate concerning the reason for the objection. The court agreed to reiterate the admonishment, which it had given at the beginning of trial, at the commencement of the next day’s session.

The following day, the court noted that it had inadvertently failed to strike the offending testimony. It proposed to read the pertinent portion of CALJIC No. 0.50, then tell jurors that if there was an objection to hearsay and the answer was already given and the court sustained the objection, jurors were to disregard the answer. This was acceptable to the defense. Accordingly, the court told the jury: “Before I get started, my job up here, as much as anything else at this stage of the proceedings, is to be a referee. The lawyer [sic] may make objections. The reason for that is they want to make sure that only admissible evidence comes in front of the jury. And my job, then, is to rule on those objections. [¶] So let me reiterate and repeat an instruction I gave to you, because we’ve have [sic] had some objections, like in all trials. [¶] Statements made by the attorneys during the trial are not evidence. However, if the attorneys stipulate or agree to a fact, you must regard that fact as proven. [¶] If an objection is sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. [¶] Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. [¶] Do not consider for any purpose any offer of evidence that is rejected or any evidence that is stricken by the Court. Treat it as though you had never heard of it. [¶] For example, if there’s an objection, say, on the grounds of hearsay, you’ve already heard the answer and I sustain that objection, that objection – that answer by the witness should not have been given and you are to disregard that.”

“A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged’”’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation]. ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 573.) In so doing, we recognize that both prosecutorial misconduct and a witness’s volunteered statement can furnish the basis for a finding of incurable prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154; People v. Wharton, supra, 53 Cal.3d at p. 565.)

We find no abuse of discretion here. The trial court immediately sustained the defense objection to both of Ms. Zavala’s offending answers. Although it initially failed to strike the testimony, it subsequently admonished the jury at the time it was requested to do so. Appellant says the court erred in the wording of its admonishment, because the instruction did not address the situation presented by Ms. Zavala’s testimony, viz., the prosecutor’s questions were answered (so jurors did not have to speculate as to what the answers might have been) and the answers were not stricken (so the instruction did not prevent jurors from considering those answers). Appellant is wrong. Although the exact situation presented by Ms. Zavala’s testimony may not have been covered by the precise language of CALJIC No. 0.50, the trial court expressly admonished jurors, in addition to the standard language of the instruction, that if there was an objection on hearsay grounds, and jurors heard the answer but the objection was sustained, the answer by the witness should not have been given and jurors were to disregard it. Appellant neither objected nor requested clarification of the admonition, which, we conclude, a reasonable jury would have understood applied to Ms. Zavala’s answers. (See People v. Hughes (2002) 27 Cal.4th 287, 388-389.) We presume jurors followed the instruction and disregarded the offending testimony. (See Weeks v. Angelone (2000) 528 U.S. 225, 234; People v. Avila, supra, 38 Cal.4th at p. 574; People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.) Assuming the prosecutor committed misconduct, the record fails to show the trial court abused its discretion by concluding appellant was not incurably prejudiced. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1154-1155.)

We doubt appellant has preserved for review a claim of prosecutorial misconduct apart from his contention the trial court erroneously denied his mistrial motion. In any event, we reject the misconduct claim on the merits. “‘Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.’” (People v. Chatman (2006) 38 Cal.4th 344, 379-380.) Nevertheless, “[a] prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement. [Citation.]” (People v. Warren (1988) 45 Cal.3d 471, 481-482.)

Here, appellant says the prosecutor should have anticipated Ms. Zavala would give improper responses and guarded against that probability. He notes she said she had testified in the past; since she did not testify at the joint preliminary hearing of appellant, Vidal, and Gerardo Zavala, he surmises she testified at the trial of a coperpetrator. Since the same prosecutor tried all of the cases, the argument runs, he must have known what the trial issues would likely be and to what Ms. Zavala might testify. Thus, appellant concludes, it is “incomprehensible” that, during some pretrial interview, the prosecutor or one of his assistants did not review with Ms. Zavala what she had observed of appellant’s relationship with Vidal.

Appellant offers nothing but speculation to support this argument. As he says, Ms. Zavala did not testify at appellant’s preliminary hearing. On the record before us, we can only guess at what her testimony might have been in another proceeding, especially since the relationship between appellant and Vidal may not have been sufficiently important in a trial, say, of Portugal or Ebaniz to warrant questioning her about it. The record supports the notion Ms. Zavala previously was asked how many times she had seen appellant and Vidal together at the ranch; since no reference to her assertion Vidal said appellant was his boss was contained in any report furnished to the defense, the record further supports the notion the prosecutor had no basis to anticipate Ms. Zavala’s response.³³ Although the prosecutor no doubt was aware, from proceedings concerning Arivzu’s testimony (see post), that a proper foundation had to be laid for testimony about appellant’s relationship with Vidal, he was also aware the subject was not completely off-limits. Since he knew Ms. Zavala had observed the two men together on several occasions, he may well have believed she could testify appropriately. Just because the prosecutor clearly wanted to establish that appellant was dominant in his relationship with Vidal does not mean the record supports a conclusion he could or should have anticipated an improper response from Ms. Zavala. (Compare People v. Kennedy (2005) 36 Cal.4th 595, 618-619 with People v. Schiers (1971) 19 Cal.App.3d 102, 112-113 & People v. Bentley (1955) 131 Cal.App.2d 687, 690-691, disapproved on other grounds in People v. White (1958) 50 Cal.2d 428, 431.)

33 We will not presume, without any basis in the record, that the prosecutor had such information but failed to disclose it to the defense.

We recognize that “a defendant can be harmed as seriously by an accident as by intentional misconduct.” (People v. Galan (1989) 213 Cal.App.3d 864, 867.) Assuming the prosecutor should have taken measures to prevent Ms. Zavala from answering as she did, “the incident clearly could not have been prejudicial under the circumstances. Specifically, the court intervened as soon as an objection was made. The court also admonished the jury in terms favorable to the defense at [a time of the defense’s choosing. Also at the defense’s behest, t]he admonition did not repeat the content of the [responses] found objectionable by the defense, and it made clear that the incident had no bearing on the guilt determination. We can only assume that the jury followed this instruction, and that any conceivable harm was prevented as a result. [Citation.]” (People v. Millwee (1998) 18 Cal.4th 96, 140.)

B. Ralph Arivzu’s Testimony

Appellant moved to exclude testimony from Ralph Arivzu implicating appellant in illegal drug sales. The prosecutor pointed out that appellant had told Skiles he was a drug dealer, thus reducing any potential for prejudice since the jury would hear the information from appellant himself, and argued that the importance of the anticipated testimony was that Arivzu knew Vidal would be with appellant and seemed to be his right-hand man, or at least appellant was the dominant character. The trial court found that how Arivzu knew appellant and Vidal had some relevance, and the fact appellant may have sold him drugs was not overly prejudicial. When defense counsel protested that the prosecutor would attempt to get information before the jury without foundation, and that there was no foundation for Arivzu’s statement that it appeared Vidal was appellant’s right-hand man or his runner, this ensued:

“[THE COURT:] He can’t say that without describing what he saw. He can’t just say I saw he was his right-hand man. That would be speculation. [¶] But the DA can attempt to elicit some evidence as to what he saw.

“MR. CROSS: I’d ask – I’d ask the Court to instruct the prosecutor to tell this witness that.

“THE COURT: Well, the witness, I assume, is going to respond to questions. What did you see when you were over there? What did you see Vidal do? What did you see Seriales do?

“MR. CROSS: And he’s going to say well, it looked to me like he was his right-hand man.

“THE COURT: What do you base that on?

“MR. CROSS: Well, but then the cat’s out of the bag.

“THE COURT: That’s not the best way to do it. [¶] The best way to do it, obviously, is to describe what he saw. But it is hard for me to get there now. But I understand your point. [¶] And your point is if he gets up and says he’s his right-hand man, that would be objectionable. That calls for speculation. What he needs to describe is what he saw.”

Following the playing of appellant’s tape-recorded statement to the jury, the defense again objected, on foundational grounds, to any statement by Arivzu that Vidal was appellant’s right-hand man or his runner, since, as clarified in a report of a recent interview with the witness, Arivzu said it just looked that way to him. The court deferred any ruling until it determined whether Arivzu could testify to facts allowing him to opine appellant was Vidal’s boss. The court cautioned that it would require open-ended, direct questioning on the subject, then explained, “You have two people here that if your client has implicated this Vidal as being the ringleader of this brutal murder and at the beginning he said he didn’t know Vidal very well, didn’t know his last name, the district attorney has the right to attempt to hook these two people together to show that they are close. And they can do that, and I’m going to allow it. [¶] And just because – and I’m going to allow examination about that. Now, if the examination is who was the boss? Was there a boss and an underling, without further foundation, that’s an improper question. So I’m just going to have to listen to it on a question-by-question basis.”

Ralph Arivzu subsequently was called as a witness for the prosecution. When the prosecutor asked how he knew appellant, Arivzu responded that he had been using methamphetamine, which he would purchase not from appellant, but at his residence.³⁴ Arivzu testified that he had been going to appellant’s house once or twice a week for about a year. Occasionally, he would see appellant walking around outside the house. Sometimes he would see Vidal in the backyard, cleaning up after the dogs Arivzu, who had wanted to purchase one, knew Vidal kept there. This ensued:

34 At this point, the trial court admonished the jury that the evidence was being admitted only to show why Arivzu may have been at the residence.

“Q. [by Mr. Alavezos, the prosecutor] All right. So you would see Mr. Vidal in the backyard. [¶] Did you ever see him with Mr. Seriales?

“A. Yes.

“Q. Okay. Was it somewhat a regular occurrence? They kind of were together a lot?

“MR. GIRARDOT: Objection. Leading.

“THE COURT: Sustained. [¶] Please ask direct questions.

“MR. ALAVEZOS: Certainly.

“BY MR. ALAVEZOS:

“Q. Tell us about how you would see them together.

“A. Um, like going – maybe – I’m not saying go, but going to the store in the car. Like I said, when I seen them in the garage, they would talk. But that’s about it. [¶] … [¶]

“Q. Okay. Now, you made a comment to Mr. Garcia about a relationship between this defendant and Mr. Vidal. [¶] What did you see that made you make that comment?

“A. Which comment would that be?

“MR. GIRARDOT: I’m going to object. There’s no such comment in evidence.

“THE COURT: Sustained.

“BY MR. ALAVEZOS:

“Q. Well, there was a comment about Mr. Vidal being a right-hand man for the defendant, Mr. Seriales.

“MR. GIRARDOT: I’m going to object. Leading and move to strike.

“MR. ALAVEZOS: Well, it is one way or the other.

“THE COURT: No. No, counsel. You need to be a little more subtle on this. These are direct questioning [sic]. You need to ask direct questions of what he saw, what relationships he saw, rather than asking him a question like that. [¶] So, ladies and gentlemen, disregard that last question. That was improper. Let’s ask direct questions of this. [¶] I had asked you before we got to this jury.

“BY MR. ALAVEZOS:

“Q. There was a comment about a relationship between Mr. Seriales and Mr. Vidal that you made to Mr. Garcia. [¶] Do you have that comment in mind by chance?

“A. He ask me if –

“MR. GIRARDOT: I’m going to object again. There’s no such comment in evidence.

“THE COURT: Yes. [¶] What I want to do is I want you to ask this witness what he saw and how he saw these people together, what kind of activities he saw. And let’s get through it that way.

“BY MR. ALAVEZOS:

“Q. I think you’ve testified you saw Mr. Vidal in the backyard of Mr. Seriales’ house. [¶] You occasionally saw him in the garage with Mr. Seriales?

“A. Like what good friends would be. You know, talking to each other. [¶] But I had never known them as partners or anything. It looked like it, but it – you know, to my best knowledge, I don’t –

“Q. You just now, you said it looked to you like they were partners. [¶] What did you base that on?

“A. Well, because they were together. I called my friend, you know, my partner, but –

“THE COURT: When you say partners, you are talking about friendship?

“A. Yeah, buddy. Buddy, yeah. [¶] … [¶]

“BY MR. ALAVEZOS:

“Q. Now, you told something slightly different to – or maybe more specific to Mr. Garcia, Jess Garcia, in July of 2001.

“MR. GIRARDOT: Objection. Leading.

“THE COURT: Sustained. [¶] Ladies and gentlemen, let me clear this up outside your presence. Would you go back in the jury room for a minute?

“(Whereupon the following was had outside the presence of the jury.)

“THE COURT: All right. Perhaps, I didn’t make myself clear. Just because somebody tells somebody else that he believes that one person worked for another person, doesn’t mean that now when you get on examination you say you said that, what do you mean by that? [¶] And because I was afraid of this, what I want you to do is ask him direct questions. [¶] Now, we’ve got this gentleman who’s indicated they were around each other a lot. They appear to be buddies. We have that this is Seriales’ house and Vidal was cleaning out dog messes in the backyard. Other than that, these are the type of direct questioning I’m asking, but I’m not going to allow you to ask you told them that you thought Vidal worked for Seriales. What do you base that on? That’s just not right.

“MR. ALAVEZOS: I understand what the Court is saying.

“THE COURT: But you keep doing it.

“MR. ALAVEZOS: What I was asking the witness was in as innocuous a way as possible, to reference him to that issue. Counsel was objecting that it was assuming a statement that was made that’s not in evidence. Either you got to go to the statement or if he’s – if that’s going to be sustained on that grounds, I was willing to go in a less aggressive manner to this information. [¶] If the Court understands what I’m saying? I was trying to, when counsel objected.

“MR. GIRARDOT: This is the easiest type of questioning on the planet. You ask a question. You get an answer. Then if it is not the answer you want, you say did you tell, when you spoke to this detective, blankety blank. These are very simple ways to impeach someone, if that’s what you are intending to do. [¶] The other thing is you ask open-ended questions. You don’t direct your witness to testify or you don’t testify for him for affirmative answers. These are objections I have to make.” (Italics added.)

Outside the jury’s presence, defense counsel asked the court to terminate the prosecutor’s examination of the witness. Counsel argued that Arivzu had said, several times, that the two men were partners, like friends, and that no different answers would be forthcoming. The trial court declined to terminate direct examination, but warned, “I will just allow direct questions and not conclusionary statements by the defendant – by the witness.” The jury was then returned to the courtroom. This ensued:

“BY MR. ALAVEZOS:

“Q. Did you have an opinion as to the nature of the relationship between the defendant and Mr. Vidal?

“MR. GIRARDOT: Objection. Speculation.

“MR. ALAVEZOS: I’m just asking if he had an opinion.

“THE COURT: Sustained. [¶] I want to know what he saw when he saw it.”

The prosecutor asked Arivzu several questions about how many times he saw appellant and Vidal driving around town together and how many times he saw appellant driving around by himself, then abruptly stated he had nothing further.

Appellant says the prosecutor committed misconduct by stating a fact not in evidence in the form of a question, i.e., the reference to a comment about Vidal being appellant’s right-hand man. Appellant recognizes that defense counsel did not move for a mistrial at that point, but says the issue is not waived because (1) the trial court had already granted a defense request that motions made at trial would not have to be repeated, and (2) under certain circumstances, a refusal to consider misconduct raised for the first time on appeal may result in a miscarriage of justice.

With respect to the first ground, the defense request extended to evidentiary rulings and not claims of prosecutorial misconduct, which were not raised in limine.³⁵ With respect to the second ground, appellant cites as authority People v. Chi Ko Wong (1976) 18 Cal.3d 698, 723-724, People v. Lyons (1958) 50 Cal.2d 245, 262, and People v. Sampsell (1950) 34 Cal.2d 757, 764. All three rely on People v. Berryman (1936) 6 Cal.2d 331, 337 for the proposition that failure to object to prosecutorial misconduct at trial and request an admonition is excused if the case is closely balanced and there is grave doubt of the defendant’s guilt, and the acts of misconduct contributed materially to the verdict, or if the harmful results could not have been obviated by a timely admonition to the jury. However, Berryman and its progeny – including the three cited cases – were overruled in People v. Green (1980) 27 Cal.3d 1, 27-34, to the extent they relied on the “close case” exception to excuse a failure to object.³⁶ That exception is no longer recognized. (People v. Cain (1995) 10 Cal.4th 1, 48; People v. Carrera (1989) 49 Cal.3d 291, 321.) It appears appellant is relying on the exception that exists when a further objection would have been futile, but, because he fails to acknowledge the subsequent history of his cited authorities, this is unclear. To the extent he is relying on the valid exception, we discern no futility: The record shows the trial court was very receptive to defense objections during Arivzu’s testimony.

35 Appellant cites us to 11 pages of reporter’s transcript, when in fact the pertinent passage appears on only one of those pages. Defense counsel asked the court to deem the in limine motions to have been made at trial. The court granted the request, clarifying that counsel meant the various evidentiary rulings.

36 Green itself was overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239 and disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3.

Nevertheless, we find the claim of prosecutorial misconduct preserved for appeal. The reason for the rule requiring a defendant to make an assignment of misconduct and seek a curative admonition at trial “‘is that “the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.”’ [Citation.]” (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) Here, the trial court ruled the prosecutor’s question was improper and promptly admonished the jury. “Although [appellant] did not request an assignment of misconduct or an admonition that the jury disregard the impropriety, through his [leading question] objection he gave the trial court an opportunity to correct the asserted abuse – an opportunity the court took advantage of .…” (People v. Young, supra, 34 Cal.4th at p. 1186; see People v. Lucas (1995) 12 Cal.4th 415, 466; People v. Bonin, supra, 46 Cal.3d at p. 689; People v. Scott, supra, 21 Cal.3d at p. 290.)

“It is well established that a prosecutor may not ‘“ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.”’ [Citation.] In other words, ‘a prosecutor may not examine a witness solely to imply or insinuate the truth of the facts about which questions are posed.’ [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1186.) Here, it is apparent the prosecutor was in possession of a report relating that Arivzu had purportedly described Vidal as appellant’s right-hand man or runner. Accordingly, there was a good faith basis for the prosecutor’s attempt to elicit the information from Arivzu. (See People v. Samuels (2005) 36 Cal.4th 96, 125.) It is misconduct, however, “for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.) “Such misconduct is exacerbated if the prosecutor continues to attempt to elicit such evidence after defense counsel has objected. [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 960.) In the present case, the court made a clear ruling that a foundation had to be laid and concerning how the prosecutor was to proceed. We find it difficult to believe a prosecutor experienced enough to be entrusted with a capital case of this complexity would not have a better handle on how to elicit the required information from the witness, even assuming the witness was being reluctant or recalcitrant.

We need not determine whether the misconduct was intentional; what matters is the effect of the prosecutor’s action on the defendant. (People v. Crew, supra, 31 Cal.4th at p. 839; see People v. Benson (1990) 52 Cal.3d 754, 793.) In this regard, “[a] defendant’s conviction will not be reversed for prosecutorial misconduct … unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]” (People v. Crew, supra, at p. 839.) Here, the trial court gave jurors a strongly worded admonition to disregard the offending question, and both previously and subsequently instructed them, pursuant to CALJIC No. 0.50, that statements made by the attorneys were not evidence, that they were not to assume to be true any insinuation suggested by a question, and that a question was not evidence and could be considered only as it helped them understand the answers. As previously stated, we presume jurors followed these instructions. (See Weeks v. Angelone, supra, 528 U.S. at p. 234; People v. Avila, supra, 38 Cal.4th at p. 574; People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.) Moreover, jurors had the benefit of Arivzu’s explanation, from his testimony as opposed to a hearsay report, that he had seen appellant and Vidal together on several occasions and thought they were buddies. Under these circumstances, it is not reasonably probable the jury would have reached a result more favorable to appellant had the prosecutor refrained from the improper questioning. (See People v. Crew, supra, 31 Cal.4th at pp. 839-840.)³⁷

37 In light of the trial court’s admonition and Arivzu’s explanatory testimony, we would reach the same result even if we were to apply a more stringent standard of review on the ground that the prosecutor acted as his own unsworn witness. (See People v. Bell (1989) 49 Cal.3d 502, 533-534.)

C. Remaining Misconduct Claims

Appellant points to the Zavala and Arivzu incidents as proof misconduct occurred under the state test. As we have seen, however, to the extent misconduct occurred, there was no prejudice.

Appellant says, however, that misconduct also occurred under the federal test. As support for his claim that prosecutorial misconduct permeated the trial and so infected the trial with unfairness as to make the resulting convictions a denial of due process, he points to the Zavala and Arivzu incidents, together with other examples of alleged misconduct. He acknowledges that he did not object or otherwise raise a claim of misconduct in most instances, but says he is simply setting forth examples of misconduct throughout trial as required by the federal standard, and, in any event, the prosecutor’s repeated misconduct obviated any request for an admonition, as one would not have cured the harm.

Appellant misapprehends the scope of the rule requiring an objection on the ground of misconduct and request for admonition. That rule applies even where a claim of misconduct is asserted as one involving denial of due process. (People v. Bell, supra, 49 Cal.3d at p. 535 & fn. 17.) Thus, even where a defendant claims the prosecutor engaged in a continual pattern of misconduct, thereby violating his or her right to a fair trial, the claim is forfeited to the extent the defendant failed to object to the prosecutor’s comments. (See People v. Ledesma (2006) 39 Cal.4th 641, 680; People v. Frye (1998) 18 Cal.4th 894, 969-970.) Objections made in the context of a new trial motion, as some were here, are insufficient and untimely. (See People v. Williams (1997) 16 Cal.4th 153, 254.)

We have reviewed each instance of alleged misconduct to which appellant did not object, and are satisfied an objection and admonition would have cured any harm. Accordingly, those contentions are not cognizable on appeal. (People v. Smith (2003) 30 Cal.4th 581, 633; People v. Hillhouse, supra, 27 Cal.4th at p. 501.) Moreover, we do not find the alleged misconduct to have been pervasive so as to justify the failure to object. (See People v. Hughes, supra, 27 Cal.4th at p. 372; People v. Hillhouse, supra, 27 Cal.4th at pp. 501-502.) Accordingly, in addressing appellant’s claim, we will consider only those instances of alleged misconduct that were properly preserved for review. (People v. Bell, supra, 49 Cal.3d at pp. 539-540.)

Appellant first cites to two objections he made during voir dire. In the first, defense counsel, having “slept on” the issue the night before, complained about the prosecutor telling prospective jurors that, although a defendant was presumed not guilty, the prosecutor washed away the presumption when he put on evidence. The prosecutor responded that what he had said was that every defendant walked in with a presumption of innocence, but that it is the production of evidence that washes away that presumption, and the presumption does not continue to stand in the face of evidence that causes jurors to believe beyond a reasonable doubt that the defendant is guilty. The trial court, noting that it “wasn’t that offended yesterday” when the remark was made, suggested the prosecutor say that evidence can wash away the presumption.

In the second objection, also apparently to a remark made the day before, defense counsel complained about the prosecutor’s “long drawn out story about the felony murder rule.” Defense counsel claimed it was improper voir dire as it was designed for rehabilitation, and not to seek a challenge for cause or to ascertain bias. After the prosecutor responded that he gave the example to explain to lay jurors that there are different levels of guilt, which is why there is a system of aggravating and mitigating evidence and the weighing process, the court stated it would allow the prosecutor’s comments.

Assuming the foregoing objections were timely made and raised the issue of prosecutorial misconduct (which appears unlikely), we will not presume misconduct occurred simply because an objection was lodged. Instead, we must examine the challenged comments ourselves, in context. Because we have not been cited to the pertinent portions of the record, we cannot do so here, nor can we discern misconduct from the record excerpts to which we have been cited. In any event, it would appear appellant “‘had ample opportunity to correct, clarify, or amplify the prosecutor’s remarks through his own voir dire questions and comments. [¶] Moreover, as a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury’s verdict in the case. Any such errors or misconduct “prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings, before its attention has even begun to focus upon the … issue confronting it.”’ [Citation.]” (People v. Seaton (2001) 26 Cal.4th 598, 636.)

Turning to alleged misconduct occurring during trial, appellant points to the Zavala and Arivzu incidents, discussed ante, together with portions of the prosecutor’s questioning of Jose Jiminez. With regard to the latter, one issue was whether Jiminez had reported that Gerardo Zavala said he was afraid of appellant (as related in the reports of the district attorney’s and Zavala’s investigators), or afraid of Vidal (as related in the report of appellant’s investigator). Defense counsel handed the prosecutor a rebuttal report on Jiminez just prior to cross-examination. On redirect examination, the prosecutor commented that he had read Jiminez had had some trouble in prison and was beaten a couple of times because he had given the statement to the first investigator. Jiminez confirmed this had happened. When the prosecutor asked whether the statement for which Jiminez was beaten included Jiminez’s claim that appellant said “we finally got” the victim, Jiminez responded that he was beaten because of the whole statement. Jiminez also confirmed that he was beaten twice while in prison and was labeled a rat. This ensued:

“Q. [by the prosecutor] Knowing you had been beatup [sic] in the past about saying bad things about this defendant, would it cause you some concerns about saying things about this defendant in the future?

“A. I don’t understand.

“Q. Well, somehow this defendant was able to get to somebody in the prison system to get you beat-up [sic].

“MR. GIRARDOT: Objection. That’s total speculation.

“THE COURT: I’m going to sustain that objection, counsel.

“BY MR. ALAVEZOS:

“Q. Well, why would you say you were beat-up [sic] because you were labeled a rat?

“A. Because of the simple fact.

“Q. Okay. And that was because of information you had given on this defendant?

“MR. GIRARDOT: Objection. Calls for speculation. [¶] We don’t know how many times he’s been a rat.

“THE COURT: Well, the statement involved this defendant, and other, what we’ll call co-defendants. So I don’t know if this man knows what part of the statement, if any, he got beat-up [sic] for.

“BY MR. ALAVEZOS:

“Q. Well, what you told this defendant’s investigator is you got beat-up [sic] for the statement that you have concerning this defendant?

“A. I never quoted who said it, who’s saying – who said what. I never quoted whose fault it was or is it. I just said it was my fault because of this case I was in. [¶] … [¶] In other words, it wasn’t to – because of him that I got beat-up [sic].”

Defense counsel subsequently objected, outside the jury’s presence, that the prosecutor had committed misconduct by suggesting appellant “got to” Jiminez without a good faith belief to support the assertion. Defense counsel asked the court to admonish the jury that this was misconduct. The court agreed to do so, at which point the prosecutor asked it to read the report. The prosecutor commented that “a lot of this kind of stuff would have been alleviated” if he had had time to review the report. The court reviewed the report, noted that it did not specifically say Jiminez was beaten because of appellant, and agreed to explain that to the jury once again. It subsequently told jurors: “Okay, ladies and gentlemen. One thing, when this last witness was on the stand, Jose Jiminez, he was talking about getting beat-up [sic] in prison. Because of this, there’s no evidence that Keith Seriales was involved of [sic] beating him up or had in any way directed that. He just said I was beat-up because of this.”

At the close of the day’s proceedings, defense counsel noted that he had asked the court specifically to tell the jury that the prosecutor engaged in misconduct with respect to the foregoing incident. The court responded that, while the “spin” placed on the incident was not supported by the facts, it did not “feel comfortable” calling it misconduct.

Assuming the trial court might appropriately have informed the jury that misconduct occurred, we fail to ascertain any prejudice in light of its admonition that there was no evidence appellant was involved in, or directed, the beatings suffered by Jiminez. (See People v. Smithey, supra, 20 Cal.4th at p. 961; People v. Bell, supra, 49 Cal.3d at p. 534.) Appellant points to the fact that, during the jury instruction conference, the prosecutor argued the evidence supported the giving of CALJIC No. 2.06 (efforts to suppress evidence) in part based on the fact Jiminez stated he was beaten up after giving his initial statement that related to what appellant said. When defense counsel pointed out that the court had ruled there was no evidence appellant did anything to harm Jiminez, the court warned the prosecutor that, if he argued specifically that appellant was involved, the court would sustain an objection. Since this exchange took place outside the jury’s presence and the court ruled in appellant’s favor, we fail to see how there could possibly have been any prejudice to appellant.

Appellant points to several instances of alleged misconduct that occurred during the prosecutor’s argument to the jury. As previously discussed, we address only those to which a timely objection was raised. First, the prosecutor noted that jurors probably expected to hear something about fingerprints, and that if appellant’s fingerprints were not there, maybe he did not touch the car. The prosecutor suggested that perhaps appellant’s fingerprints were not left on the car because he was wearing gloves. Defense counsel objected to the remark as being speculation, and pointed out there was no evidence appellant was ever wearing the gloves. The trial court directed the prosecutor to continue, whereupon the prosecutor noted that appellant himself said he was in the garage. When the prosecutor argued that every one of the defendants could say the same thing – that his fingerprints were on the car, but it was because he would go over and visit at the house – defense counsel objected that there was no evidence of any other defendant’s statement. The trial court reminded jurors that this was argument, and that they understood what the evidence was. This ensued:

“MR. ALAVEZOS: That’s the state of the case. You have physical evidence and you have to use your common sense. [¶] Then we go through the witnesses and we talk about Jose Jiminez and why he said what he said and when he said it. And we are still left with the fact that after he said – the first thing he said included the defendant and my investigator was asked about it. And he stated that when he talked to Mr. Jiminez, it was very clear that Mr. Zavala told him it wasn’t Vidal that he was scared about. It was this defendant. [¶] Furthermore, we know from Mr. Jiminez that the first time he said something about this defendant, he ended up getting beat up afterwards.

“MR. GIRARDOT: Objection. Calls for speculation.

“THE COURT: Yes. We went through this before. He made the statement he was later beat up in jail, according to his testimony, but there’s no evidence that linked this particular defendant to that. [¶] I think that was clear the last time we addressed this.

“MR. ALAVEZOS: The fact remains that that person made that statement and something happened. And, certainly, his motive for stating things can change.”

“At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom. [Citations.]” (People v. Morales (2001) 25 Cal.4th 34, 44.) A prosecutor has “‘wide latitude’” in this regard, and whether the inferences he or she “‘draws are reasonable is for the jury to decide.’ [Citation.]” (People v. Cole, supra, 33 Cal.4th at p. 1203.) Nevertheless, “‘counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence [citation].’ [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 249.)

Assuming the prosecutor stepped beyond the realm of reasonable inference with respect to his comments about gloves and fingerprints, his core point – that the physical evidence or lack thereof did not mean appellant was not guilty – was unobjectionable. There was no prejudice, as the comments were brief and mild, and the trial court reminded jurors that the remarks were merely argument.

Although the prosecutor could properly argue which of Jiminez’s statements was the truth and that his motivation for saying things could change, in light of the trial court’s previous ruling, he should not have suggested, even by implication, that appellant was responsible for Jiminez’s beatings. Assuming an objection on the ground of speculation sufficiently preserved the issue for review, there was no prejudice in light of the court’s immediate reminder to the jury that there was no evidence linking appellant to the beatings.

At no point did appellant specifically object to alleged misconduct on federal constitutional grounds. Assuming he may nonetheless claim, based on the incidents to which he objected, that prosecutorial misconduct permeated the trial and so infected the trial with unfairness as to make the resulting convictions a denial of due process (see People v. Ledesma, supra, 39 Cal.4th at p. 669, fn. 3; People v. Partida (2005) 37 Cal.4th 428, 431), we disagree. Appellant has shown no prejudicial misconduct, either standing alone or in terms of cumulative effect. (See People v. Young, supra, 34 Cal.4th at p. 1198; People v. Medina (1995) 11 Cal.4th 694, 760-761.) In short, “we find no pervasive pattern of misconduct that would warrant reversal.” (People v. Seaton, supra, 26 Cal.4th at p. 663.)

V

REQUEST TO CONTINUE SENTENCING

Appellant next contends the trial court violated his constitutional rights by refusing to continue the sentencing hearing in order to allow him to develop jury misconduct as an issue for a new trial motion.

A. Background

The jury’s penalty phase verdict was returned on August 2, 2005, and sentencing was set for August 30. The trial court ordered that its record of personal juror identifying information be sealed until further order of the court, and pending a hearing on any petition for access thereto.

On August 19, appellant filed a motion for a new trial based on insufficiency of the evidence and prosecutorial misconduct. The People opposed the motion.

On August 29, appellant filed a notice of motion to continue sentencing on the ground that additional time was necessary to investigate and prepare a new trial motion. In support, defense counsel declared that after trial, he instructed his investigator to interview the jurors. Early in the week preceding the motion, his investigator advised him of the results of the first interview and he told her to interview other jurors. On the afternoon of Friday, August 26, the investigator advised him of the results of the second interview. The two juror interviews that had been conducted indicated more interviews were necessary to fully explore possible grounds for a new trial based on juror issues.

At the August 30 hearing, the court directed defense counsel to give it the basis for his continuance request. Counsel responded that he believed every trial attorney had a duty, especially in a case where the sentence was going to be life in prison without the possibility of parole, to conduct juror interviews as a basis for a new trial motion. Counsel represented that he had started the process, but had not been able to finish it. Counsel related that he took a week off at the conclusion of trial; when he returned, he gave his investigator instructions to interview the jurors using her own resources, and she had not yet been able to complete the interviews. To date, four jurors had been interviewed, and counsel requested a four-week continuance to allow completion of the process and in order that counsel could fully investigate grounds for a new trial. The prosecutor opposed the motion, arguing that nothing in the statutes related to the protection of juror information allowed the defense to have extra time to “go fishing to see if there might be something out there that they could use to create a basis for a motion for a new trial.”

The court agreed with the prosecutor. It observed that it had granted continuances where the defense made a prima facie case – for example, where a family member of the defendant alleged that he or she saw a juror speaking to a prosecution witness – but stated, “That’s a prima facie case, and I’d open up the records for that. Just to continue this for a fishing expedition I don’t think is appropriate. And that’s the ruling.”

Defense counsel then asked for an in camera hearing in which to disclose what two of the jurors had told him. The court responded that it was his responsibility to file a declaration, and noted that counsel should not even have had jurors’ names and other information, as that information had been sealed pending a hearing, and there had been no hearing. The court suggested defense counsel was trying to find people’s names in the telephone book, and it refused to continue the case for that. The court refused to allow defense counsel to present his information outside the prosecutor’s presence, but afforded him the opportunity to make an offer of proof. Counsel related that he understood his investigator to have told him that two of the jurors told her that they believed merely failing to assist the victim constituted aiding and abetting. Counsel asserted that if that were the case and there was discussion of it by the jurors, it would constitute misconduct.

After the court took a break so it could research the issue, defense counsel argued that, under section 1191, the court had the authority to continue a sentencing hearing, and that, under case authority, due process is violated if counsel is not given adequate time to prepare a motion for a new trial. The court confirmed that defense counsel already had a motion for a new trial set to be heard that day, but that he wanted more time in order to contact jurors to determine whether there was an additional basis for the motion, specifically that jurors may have misapprehended the court’s instructions and what counsel said concerning the law of aiding and abetting, and that they may have discussed that among themselves. The prosecutor countered that there were no colorable grounds that would necessitate a continuance. This ensued:

“[THE COURT:] But basically as to determining what the jurors said and how it affected their decision is just simply not allowed. If there is evidence that a juror was influenced there [sic] outside influence for example a juror was reading a newspaper or talked to somebody or did his or her own experiments, certainly, but to go into the conversations between the jurors as to what particular evidence what instructions meant, it is just forbidden. [¶] For good reason. Because any juror instruction, any time 12 people get in and they are talking about the law, there may be a misapprehension of what was said. And during the course of discussions we’re not going to examine to determine what was said and how that would influence other people. There is just not a basis for it.

“MR. CROSS: Let me – something else that just came to mind. This is what my investigator told me yesterday. [¶] One of the jurors said that after the first day’s deliberations, that evening the jury foreman went home and typed up a bunch of material and distributed it to the jurors. [¶] … [¶] And I don’t know what was on it. I would like extra time to investigate what was on that material that was distributed. It could be a basis for deliberating outside the presence of the other jurors. [¶] What he did was prepare materials for the other jurors to review. And until I know what was on it, I don’t know whether there’s a basis for a new trial based on that. But I think that is something that should be investigated further.

“MR. ALAVEZOS: Well, I know that these things keep popping up and I wonder how many more there will be. I’m sorry for the sarcastic comment. But it does seem interesting we each keep having one step at a time. I don’t think you deliberate by yourself and I don’t think it is prohibited that you not think about the case until you get back to the other 11 jurors. [¶] And counsel has not indicated that – I can see where a person could bring this, this is the things I thought about last night to discuss with the other jurors, and that would be inappropriate. We don’t have any prima facie showing that anything improper occurred.

“THE COURT: I agree with the prosecutor. [¶] Okay. Let’s go with the motion for a new trial that’s filed.”

B. Analysis

“When a verdict has been rendered or a finding made against the defendant,” he or she may move for a new trial on the grounds, inter alia, that “the jury has received any evidence out of court” or has “been guilty of any misconduct by which a fair and due consideration of the case has been prevented; …” (§ 1181, subds. 2, 3.) “A court may grant such a motion if and only if the defendant demonstrates the existence of an error or other defect that is reversible. [Citation.]” (People v. Clair (1992) 2 Cal.4th 629, 667.) A trial court has the authority to extend the time for sentencing for the purpose of hearing or determining a motion for a new trial (§ 1191), and if it refuses to hear or neglects to determine such a motion, the defendant is entitled to a new trial if he or she suffers actual prejudice as a result (§ 1202; People v. Braxton (2004) 34 Cal.4th 798, 817).

In order to continue any hearing in a criminal proceeding, however, “a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary .…” (§ 1050, subd. (b), italics added.) “When a party makes a motion for a continuance without complying with the requirements of subdivision (b), the court shall hold a hearing on whether there is good cause for the failure to comply with those requirements. At the conclusion of the hearing, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding. A statement of the finding and a statement of facts proved shall be entered in the minutes. If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted.” (Id., subd. (d), italics added.) The provisions of section 1050 apply to the proceedings before us. (Cf. People v. Smithey, supra, 20 Cal.4th at p. 1011; People v. Duran (1996) 50 Cal.App.4th 103, 122;³⁸ People v. Atkins (1988) 203 Cal.App.3d 15, 28, disapproved on other grounds in People v. Jones (1990) 51 Cal.3d 294, 322.)

38 Appellant cites us to Duran v. Superior Court (1996) 50 Cal.App.4th 753, but refers to pages 112-113 and 122-123. Since Duran v. Superior Court (which, ironically, dealt with a petition for an order disclosing the personal identifying information of trial jurors) was ordered nonpublished upon denial of review (Feb. 19, 1997, S057811), and since the point page references are to People v. Duran, supra, 50 Cal.App.4th 103, we assume appellant’s references are to the latter case.

Here, appellant clearly failed to comply with the time requirements of section 1050, subdivision (b). Under the circumstances, it is tempting to agree with respondent’s position that, appellant having failed to show good cause for his noncompliance, the trial court was required to deny the motion for continuance pursuant to subdivision (d) of the statute. Since it appears the court and counsel addressed the merits of the continuance motion and not its untimeliness, such that no hearing was held to determine whether appellant could establish good cause for his noncompliance, however, we find it appropriate to address the issue on its merits.

“Continuances shall be granted only upon a showing of good cause.” (§ 1050, subd. (e).) “The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. [Citations.]” (People v. Sakarias (2000) 22 Cal.4th 596, 646.) “Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel. [Citation.]” (Morris v. Slappy (1983) 461 U.S. 1, 11.) Similarly, “it is not every denial of a request for more time that violates due process even if the party fails to offer evidence .… [Citation.] Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. [Citation.]” (Ungar v. Sarafite (1964) 376 U.S. 575, 589.) “In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 1013.) Since the trial court’s call is a discretionary one (Morris v. Slappy, supra, 461 U.S. at p. 11; Ungar v. Sarafite, supra, 376 U.S. at p. 589; People v. Frye, supra, 18 Cal.4th at pp. 1012-1013), we apply a deferential standard of review that “also asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (People v. Williams (1998) 17 Cal.4th 148, 162; see People v. Giminez (1975) 14 Cal.3d 68, 72.) In this regard, “‘[t]he burden is on [the defendant] to establish an abuse of judicial discretion .…’ [Citation.] ‘[A]n order of denial is seldom successfully attacked.’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1003.) These standards apply to requests for continuances to prepare new trial motions. (See People v. Snow (2003) 30 Cal.4th 43, 70, 77.)

A showing of good cause requires a demonstration that both counsel and the defendant have used due diligence in their preparations. (People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Mickey, supra, 54 Cal.3d at p. 660.) In addition, “[a]n important factor for a trial court to consider is whether a continuance would be useful. [Citation.]” (People v. Beeler, supra, 9 Cal.4th at p. 1003.)

Due diligence was not shown here. Given defense counsel’s asserted belief that every trial attorney has a duty in a case of this magnitude to conduct juror interviews as a basis for a new trial motion, we see no reason why he could not have arranged, immediately following rendition of the penalty phase verdict, for those jurors who were willing, to speak to him or his investigator. Jurors were advised, at the conclusion of trial, that either attorney or his representative could discuss deliberations with any member of the jury, provided the juror(s) consented and the discussion occurred at a reasonable time and place. The record strongly suggests jurors would have been available to counsel immediately after they were dismissed, as the trial court asked them to return to the jury room for a few minutes. Moreover, defense counsel offered no explanation for why he waited until after his vacation to give instructions to his investigator; why it took her so long to obtain the information she did; and why counsel could not present more detailed information with respect to whether jurors discussed their alleged misunderstanding of the trial court’s instructions on aiding and abetting, and the nature of what the jury foreperson distributed to other jurors. (See, e.g., People v. Sakarias, supra, 22 Cal.4th at pp. 646-647; People v. Smithey, supra, 20 Cal.4th at p. 1012; People v. Duran, supra, 50 Cal.App.4th at pp. 122-123.)

In addition, the trial court reasonably could have concluded a continuance would not be useful. As the trial court recognized, jurors’ purported misunderstanding of the court’s instructions concerning aiding and abetting could not furnish grounds for a new trial. Subdivision (a) of Evidence Code section 1150 provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without he jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Italics added.) This statute “may be violated ‘not only by the admission of jurors’ testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror’s mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.’ [Citation.]” (People v. Duran, supra, 50 Cal.App.4th at pp. 112-113, quoting People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.)

Considering strictly jurors’ alleged misapprehension of the law, there was no suggestion in the present case that jurors discussed improper subjects, or introduced extraneous law or facts into deliberations, such that their statements themselves might be found to constitute misconduct. (See, e.g., People v. Jones (1998) 17 Cal.4th 279, 316 [juror’s posttrial statements arguably provided basis for permitting defendant to investigate whether jury discussed improper subject of deterrence during penalty phase deliberations]; In re Stankewitz (1985) 40 Cal.3d 391, 397-398 [juror gave erroneous legal advice, based on experience as police officer, to other jurors; very making of statement constituted misconduct & was as much an objective fact as juror’s reading of novel during testimony or consultation with outside attorney for advice on law applicable to case]; People v. Perez (1992) 4 Cal.App.4th 893, 908 [jury misconduct to disregard trial court’s express instruction not to consider defendant’s failure to testify].) “Certainly, there was no ‘improper outside influence[].’ [Citation.]” (People v. Clair, supra, 2 Cal.4th at p. 668.) Instead, “where, as here, the affidavit or declaration [or offer of proof] suggests ‘“‘deliberative error’ in the jury’s collective mental process – confusion, misunderstanding, and misinterpretation of the law,”’ particularly regarding ‘the way in which the jury interpreted and applied the instructions,’ the affidavit or declaration is inadmissible [or, in the case of an offer of proof, insufficient]. [Citation.] The mere fact that such mental process was manifested in conversation between jurors during deliberations does not alter this rule. [Citation.]” (People v. Sanchez (1998) 62 Cal.App.4th 460, 476; see, e.g., People v. Steele (2002) 27 Cal.4th 1230, 1261; Ford v. Bennacka (1990) 226 Cal.App.3d 330, 335-336.)

With respect to the jury foreperson’s purported action, it is true that “[a] juror may commit misconduct by receiving or proffering to other jurors information about the case that was not received in evidence at trial. [Citation.]” (In re Lucas (2004) 33 Cal.4th 682, 696.) Here, however, there is no basis other than speculation – proffered by defense counsel essentially as an afterthought – for assuming that whatever the foreperson distributed could not properly be considered by jurors, or, for that matter, had anything to do with the case. Under the circumstances, the trial court was not required to afford counsel additional time on the off chance some further basis for a new trial motion might be unearthed. The trial court’s denial of appellant’s continuance motion neither constituted an abuse of discretion nor supports a claim of federal constitutional error. (See People v. Howard (1992) 1 Cal.4th 1132, 1171-1172.)

VI

EIGHTH AMENDMENT VIOLATION

Appellant contends his rights under the Eighth Amendment to the United States Constitution were violated when the jury was permitted to utilize the same facts to establish both first degree murder and the special circumstances. As he acknowledges, the California Supreme Court has rejected this argument. (E.g., People v. Pollock (2004) 32 Cal.4th 1153, 1195 & cases cited; People v. Lewis (2001) 25 Cal.4th 610, 676; People v. Bemore, supra, 22 Cal.4th at p. 843; People v. Holt (1997) 15 Cal.4th 619, 697-698; People v. Marshall (1990) 50 Cal.3d 907, 945-946; People v. Davenport (1985) 41 Cal.3d 247, 271 (plur. opn. of Reynoso, J.).) We do likewise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

VII

CUMULATIVE PREJUDICE

Appellant says the cumulative effect of the errors that occurred at his trial denied him his constitutional rights to due process and fundamental fairness. “The few errors that may have occurred during [appellant’s] trial were harmless whether considered individually or collectively. [Appellant] was entitled to a fair trial, not a perfect one. [Citation.]” (People v. Box, supra, 23 Cal.4th at p. 1214.) As appellant’s trial was fair, his contention fails.

VIII

SENTENCING ERRORS

In sentencing appellant, the trial court found no factors in mitigation and the following in aggravation: the crime involved great violence and great bodily harm, and the threat of great bodily harm and other acts disclosing a high degree of cruelty or viciousness or callousness (Cal. Rules of Court, rule 4.421(a)(1));³⁹ the victim was particularly vulnerable (rule 4.421(a)(3)); the defendant induced others to participate in the commission of the crime and occupied a position of leadership and dominance with respect to other participants (rule 4.421(a)(4)); the manner in which the crime was carried out indicated planning and sophistication or professionalism (rule 4.421(a)(8)); and the defendant engaged in violent conduct that indicated a serious danger to society (rule 4.421(b)(1)). With respect to factors affecting concurrent or consecutive sentences, the court found that, although committed within a short period of time, the crimes involved separate and distinct acts of violence, torture, kidnapping, and murder (rule 4.425(a)(2)). Accordingly, it implicitly designated count 6 as the principal term, and imposed the eight-year upper term, plus consecutive three-year terms for the two section 12022, subdivision (a)(2) allegations, for a total term of 14 years. The court imposed the eight-year upper term on count 3, stayed the section 12022, subdivision (a)(2) enhancements, and ordered the term to run concurrent to that imposed on count 6. With respect to count 1, the court imposed a sentence of life in prison without the possibility of parole, plus two consecutive three-year terms for the section 12022, subdivision (a)(2) allegations. On count 2, the court imposed a life term, plus two consecutive three-year terms for the section 12022, subdivision (a)(2) allegations, and stayed the entire term pending completion of the term imposed on count 1. For counts 4 and 5, the court imposed terms of 25 years to life, plus two consecutive three-year terms for the section 12022, subdivision (a)(2) allegations, and stayed both terms pending completion of the term imposed on count 1. The court also imposed various fees and fines, including a $10,000 parole revocation fine pursuant to section 1202.45, which it ordered suspended pending successful completion of parole.

39 All references to rules are to the California Rules of Court as they existed at the time of sentencing. (Rules relating to sentencing have since been amended, effective May 23, 2007.)

Appellant now contends that various sentencing errors occurred. Respondent concedes that a remand for resentencing is necessary.⁴⁰

40 Respondent contends only a limited remand is necessary to correct certain specific errors. Since several disparate errors occurred, some of which affect the principal term, and issues now exist in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), we find a complete sentencing remand to be appropriate. This being the case, we assume the trial court will ensure the resulting abstract of judgment accurately reflects the sentence imposed. Accordingly, we do not address respondent’s claims that the abstract is erroneous in various respects.

A. Imposition of Unauthorized Sentence on Count 6

Appellant contends the trial court imposed an unauthorized sentence on count 6. He notes that, although the verdict form indicates a conviction for a violation of subdivision (a) of section 289 – which does indeed carry a sentence range of three, six, or eight years – appellant was charged in count 6 of the third amended information with a violation of subdivision (h) of the statute, a “wobbler” offense punishable by imprisonment in the state prison or in the county jail for a period of not more than one year. This charge was never amended; jurors were instructed that appellant was charged in count 6 with, and on the elements of, a violation of section 289, subdivision (h); and the verdict form described the crime contained in subdivision (h) of the statute, but inadvertently referred to subdivision (a). Respondent appropriately concedes that the verdict cites the incorrect subdivision and that an unlawful sentence was imposed on this count. (See § 1009; People v. Birks (1998) 19 Cal.4th 108, 129.) Accordingly, we will direct the trial court to correct the clerical error contained in the verdict form for count 6, and to resentence appellant thereon. (See People v. Trotter (1992) 7 Cal.App.4th 363, 369-370.)

B. Imposition of Multiple Firearm Enhancements

Appellant next challenges the trial court’s imposition of two separate, consecutive section 12022, subdivision (a)(2) enhancements, one for the AK-47 possessed by Portugal and Gerardo Soto, and one for the nine-millimeter pistol possessed by Vidal. Appellant acknowledges that one such enhancement is permissible per count, but says the second one must be stayed. Respondent agrees, as do we. (§§ 1170.1, subd. (f), 12022, subd. (e); cf. People v. Crites (2006) 135 Cal.App.4th 1251, 1255-1256; People v. Jones (2000) 82 Cal.App.4th 485, 492-493.)

C. Imposition of Parole Revocation Fine

Appellant contends the trial court erroneously imposed (albeit stayed) a parole revocation fine pursuant to section 1202.45. Respondent appropriately concedes the error. Such a fine should not be imposed where, as here, the defendant’s sentence includes a term of life in prison without the possibility of parole. (§ 1202.45; People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186.)

D. Imposition of Upper and Consecutive Terms

Relying on Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and, implicitly, Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], appellant contends the trial court violated his Sixth Amendment right to trial by jury by imposing upper and consecutive terms based on factors not admitted by appellant or found to be true by the jury beyond a reasonable doubt.

The California Supreme Court recently reaffirmed that imposition of consecutive terms does not violate a defendant’s constitutional right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 820-823 (Black).) Since the matter is being remanded for resentencing, we need not address appellant’s challenge to imposition of the upper term. The parties will be free to argue the propriety of such a sentence to the trial court, taking into account Black and People v. Sandoval (2007) 41 Cal.4th 825.

DISPOSITION

The trial court is directed to correct the clerical error in the verdict form for count 6 to reflect a conviction of section 289, subdivision (h). As so corrected, the judgment of conviction on all counts is affirmed. The sentence is vacated and the matter is remanded for resentencing in accordance with the views expressed in this opinion.

WE CONCUR: Wiseman, J., Cornell, J.

Homicide is justifiable when committed by any person “1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or [¶] 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or, [¶] 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or, [¶] 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.” (§ 197.)

Assuming the case was correctly decided and Michael was simply trying to ensure the safety of bystanders and not assist Washington by preventing someone from interfering, appellant’s conduct and the purpose and effect of his presence were qualitatively and quantitatively distinguishable from that attributed to Michael. Accordingly, the case does not assist appellant.

Although mistakenly referring to rule 4.421(a)(2), the trial court remarked that this case had the highest degree of cruelty and viciousness it had ever seen in a human being.