People v. Brooks

Full title: THE PEOPLE, Plaintiff and Respondent, v. JERMAINE BROOKS et al.…

Court: California Court of Appeals, First District, First Division

Date published: Jun 21, 2007

No. A110696 (Cal. Ct. App. Jun. 21, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. JERMAINE BROOKS et al., Defendants and Appellants. A110696 California Court of Appeal, First District, First Division June 21, 2007

A110696, Alameda County Super. Ct. No. 143257.

I. INTRODUCTION

Margulies, J.

A jury convicted codefendants Jermaine Brooks, Anthony Brown, and Derek Brown of first degree felony murder in connection with the fatal shooting of a convenience store security guard during the course of an attempted robbery.¹ As to Brooks and Anthony, the jury found true the special circumstance allegation that the killing occurred while they were engaged in the attempted commission of a robbery. Because the prosecution did not seek the death penalty against either defendant, they were sentenced to life in prison without the possibility of parole. The jury found the special circumstance not true as to Derek, and the court sentenced him to an indeterminate term of 26 years to life.

1 To avoid confusion, we will refer to defendants Anthony Brown and Derek Brown by their first names in this opinion.

Defendants contend that their convictions and adverse special circumstance findings resulted from: (1) a series of evidentiary and instructional errors at trial; (2) prosecutorial misconduct in jury selection, closing argument, and pretrial discovery; and (3) ineffective assistance of counsel. Brooks and Anthony contend that their life-without-parole sentences were unauthorized by statute and constitute cruel and unusual punishment.

Finding no reversible error in the trial proceedings or illegality in the sentences imposed, we affirm the judgments appealed from.

II. BACKGROUND

A. Relevant Pretrial Proceedings

By information filed in July 2002, defendants were charged with murdering James Milton Miller on or about October 31, 2001 (Pen. Code, § 187, subd. (a)).² The information charged all three codefendants with the special circumstance of committing the murder while engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)). The information further alleged that codefendant Brooks: (1) caused Miller’s death by personally and intentionally discharging a firearm (§ 12022.53, subd. (d)); (2) personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and (3) personally used a firearm (former § 12022.5, subd. (a)(1); § 12022.53, subd. (b)). With respect to Anthony and Derek, the information alleged that a principal in the offense was armed with a firearm (§ 12022, subd. (a)(1)).

2 All further statutory references are to the Penal Code unless otherwise indicated.

At their arraignments, the prosecution announced that it was not seeking the death penalty against any of the defendants. All of the defendants pleaded not guilty and denied the allegations. Jury trial began on November 15, 2004. During jury selection, the defense brought three Batson-Wheeler ³ motions, and each motion was denied.

3 “Batson-Wheeler” refers to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Batson held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates inter alia, the defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. (People v. Gray (2005) 37 Cal.4th 168, 183–184.) Wheeler had previously held that such a practice violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (People v. Gray, at pp. 183–184.)

Trial continued from January 11 through February 2, 2005.

B. Trial Evidence

1. Prosecution Case

a. The San Leandro Robbery

On October 31, 2001, the night before the murder of James Miller, defendants robbed a 7-Eleven store in San Leandro owned by Sushil Singh and her husband.⁴ The store was near Interstate 580. Singh was alone in the store, standing behind the counter at the cash register, when three Black males, later identified as the defendants, entered the store between 6:30 p.m. and 7:00 p.m. Derek came to the counter, asked for a pack of Newport cigarettes, and gave Singh five dollars. When Singh put the money on the cash register and opened it to give him his change, Anthony came to Singh’s side of the counter, put a silver gun to her head, said, “[H]old it,” and grabbed about $100 in cash out of the register. As he was doing this, Anthony pushed Singh down to the floor and told her not to look. The entire incident took about a minute. Five minutes after defendants left, customers entered the store and the police were called. Store security cameras captured the incident on a videotape that was played for the jury.

4 Evidence concerning the San Leandro robbery was admitted under Evidence Code section 1101, subdivision (b) to show the defendants’ intent and the existence of a common method, plan, or scheme.

In a statement to police after his arrest, Anthony described the robbery of a 7-Eleven store in Hayward near Interstates 580 or 880 a day or two before the shooting of James Miller in which he had made the clerk get on the ground, gone through the cash register, and left with about $100. He told police that the nine-millimeter gun he used that day was same one used in the Miller shooting. Derek and Brooks also admitted participating in the San Leandro robbery. Brooks agreed that Anthony used the same gun in that robbery that Miller was shot with on October 31, 2001. Tapes of defendants’ statements about the San Leandro robbery were played for the jury.

b. The October 31, 2001 Shooting

Iyad Allamari, known as Alex, was working as a cashier at the 7-Eleven store at 4720 MacArthur Boulevard in Oakland on October 31, 2001. Security guard James Miller and clerk Isayas Debessay were also present in the store about 10:30 p.m. when defendants entered. There were two other customers in the store at the time—a female and a male—who Alex served. Derek and Anthony came to the cash register, standing in line behind the female customer. Brooks had entered the store with a cigarette in his hand. Miller told Brooks to drop it or take it outside. Brooks left the store to throw the cigarette away and reentered. Alex noticed that Derek and Anthony laughed at Brooks, although not loudly.

When Derek and Anthony came up to the register, Derek took beef jerky from the counter and paid with a five-dollar bill. Anthony was next to him. Alex placed the five-dollar bill in the cash register and took out $4.01 in change. After closing the register, Alex turned to his right because he felt there was something going on there. When he turned, Alex saw that Brooks was pointing a white-colored gun at Miller’s head. Believing it was a robbery, Alex raised his hands and told Miller to give up his gun.⁵ Miller resisted and held Brooks’s wrist with one hand. It appeared to Alex that Miller was trying to take the gun from Brooks.

5 In a statement given to police on the night of the shooting, Alex said one of the men asked Miller for his gun and that Derek told Miller to give the other man his gun. He said he told Miller to give up his gun and to give them what they wanted. Alex did not describe the events as a robbery but as a fight with a guard.

When Alex first saw the gun, Debessay was standing next to him. Debessay ran away to the store’s office, and Alex backed away and ran behind a shelf. From behind the shelf, he saw Derek and Anthony move toward Miller. He saw one of the defendants trying to grab Miller’s gun, but could only see his hand, not his face. The person tried once or twice to pull out the gun but was not successful. The altercation occurred near the front door. Seeing a chance to escape, Alex ran to the bathroom and closed the door. From the bathroom, Alex heard a single gunshot.

Debessay waited a minute or two before coming out of the office, and then called 911. He saw Miller walking slowly out of the store. A tape of the 911 call was played for the jury. Debessay told the operator that somebody just shot “my security guard” and that “[h]e wants to rob us.” Alex tells the operator, “We got robbing” by “three black people.”

Officer Edwin Bermudez was the first officer to arrive at the scene. He found Miller lying motionless on the hood of his car, which was parked directly in front of the store’s front door.⁶ Miller was unconscious and never regained consciousness. A pathologist testified that a single bullet entered the front of Miller’s chest, went through his left lung, bruised his heart, and exited out his back, causing his death. There was no evidence of powder burning around the entrance wound, indicating that the shooting was not done at close range.

6 Officer Bermudez knew Miller and recognized his car, which he always parked in front of the store when he was working.

Two videotape security cameras were operating on the night of the shooting. One showed the entrance to the store and, thus, every customer who entered. The cameras produced a videotape that was played in court. The videotape showed the three defendants in various positions that generally corroborated Alex’s account of the sequence of events he observed.⁷

7 The videotape showed the following events occurring before the struggle began between Miller and Brooks: Derek walked in first, followed by Brooks and then Anthony. Derek immediately stood in line at the cash register behind a female customer even though he had not picked up anything to purchase. Brooks first walked in the direction of the security guard and then stood by the front entrance. Anthony, who was hooded, entered the store and walked out of the camera’s sight to a location somewhere behind Derek. Just before the female customer finished her purchase and left, a male customer came into the store and stood in line behind Derek. As the female customer exited the front door, the security guard approached Brooks, and then returned to where he had been standing. Brooks momentarily stepped outside the entrance, apparently to dispose of his cigarette. Derek turned toward the male customer and let him go up to the cash register ahead of him. Anthony moved up and stood next to Derek. As the male customer finished his purchase, Derek moved up to the counter and quickly picked up something to buy. As soon as the male customer left the store, Derek and Anthony moved up to the counter and Brooks, who had stayed near the front door, moved toward the security guard.

The videotape also showed a partial view of the struggle between the guard and the defendants, and showed where Brooks and the guard were standing when the fatal shot was fired.⁸ Sergeant Derwin Longmire, the primary investigating detective on the case, watched the videotape after he arrived on the scene at about 1:00 a.m. After watching the tape that night and interviewing Alex, Longmire concluded that defendants had attempted to rob the store but were interrupted by Miller doing his job. Shown the tape in court, Longmire testified—based on Brooks’s stance just before the moment when Longmire believed the actual shot must have been fired—that the shooting of Miller was a deliberate act. According to Longmire, and as substantiated by the videotape, Brooks was in a shooting stance, with his feet spread, his right hand holding the main grip of the gun and his left hand supporting it. The tape shows Brooks raising the gun to a horizontal position with his head and arms aligned to give him a line of sight along the gun barrel. Immediately after that frame, the guard is shown falling back and the shooter had fled from the store.

8 The videotape did not show the weapon actually firing.

c. Informant Dwayne Chandler

On November 10, 2001, the police arrested Dwayne Chandler for gun possession. Chandler offered to tell the police about the Oakland 7-Eleven shooting in return for being released on the gun charge. He wanted his name kept secret. Longmire told Chandler that the gun charge might be dropped if his information was solidly corroborated.

The jury heard an audiotape of Sergeant Longmire interviewing Chandler on November 12, 2001. On the tape, Chandler recounts how he had identified all three defendants from photo spreads, and that all three had told him personally they were involved. According to Chandler, Brooks told him he intended to rob the 7-Eleven, but the security guard resisted, so Brooks shot him. Chandler provided other details concerning the crime, including the cost of the item Derek purchased, the fact that Anthony walked into the store with his grey hood pulled over his head, and the fact that Miller was shot in the chest. Before Chandler provided defendants’ names, Longmire did not know the names of any suspects.

On November 13, 2001, Longmire brought Chandler in front of a superior court judge, sitting as a magistrate, who questioned him about the information he had provided. The magistrate signed the arrest warrants and Chandler was released three days after he was arrested, with no charges against him.

At trial, Chandler recanted most of his prior statements. Although he knew all three defendants,⁹ Chandler testified that he had not spoken directly with any of them after the incident. Rather, he simply told Sergeant Longmire rumors that he had heard in the neighborhood about who was involved. The information about the incident that he supplied to Longmire was based on his prior knowledge about defendants, publicity he had seen in the newspaper, and information Longmire had given him, including photos of the incident. Longmire had told him the store had been robbed. Chandler testified that he told Longmire he had spoken directly with the defendants in order to make his information seem more valuable. He was under the influence of heroin, cocaine, alcohol, and marijuana when he was arrested. He had been anxious to get out of jail so he could get back on the streets to buy more drugs.

9 Derek and Chandler had known each other since childhood and were related by marriage. Chandler sometimes referred to Derek as his “cousin.”

d. Defendants’ Statements to Police

Anthony was arrested on November 13, 2001, and gave a taped statement that evening. The tape was played for the jury. Anthony smoked nine marijuana cigarettes that day, and drank half a pint of gin and about the same amount of Hennessy. Defendants planned to rob the store by taking cash from the register. After walking in, they waited until a female customer left the store before moving ahead with the plan. Anthony identified a photo from the surveillance video as him struggling with the guard. He told police that Miller refused to surrender his gun and that he tried to grab the gun so no one would get shot. Although he had been to the store before, and knew Miller was armed with a gun, Anthony told police that he forgot Miller was armed until he saw the gun.

Brooks was also arrested on November 13, 2001, and gave a statement to police that was tape-recorded. The statement was played for the jury. Brooks told police that he did not mean to shoot Miller. He described driving to the 7-Eleven store on Halloween night to commit robbery. When Brooks saw the guard he said, “I’m gonna to take the security guard.” He was going to make sure the guard did not pull his gun out by pointing his own gun at the guard. He entered and walked up to the security guard. When the guard turned around, Brooks pointed his gun at him. He put his gun on the guard’s back, and said, “Give me your gun.” The security guard grabbed Brooks’s gun with both hands and they began tussling over it. The guard told Brooks, “I’m not givin’ you my gun.” Then the guard released Brooks’s gun and Brooks said, “Okay, okay.” As he was pulling his gun back and running toward the door, he hit the trigger and the gun went off accidentally. He did not know the gun was loaded. He ran out the door, got into his car, and left.

The police interviewed Brooks and Anthony together on November 14, 2001, and a tape of that interview was played for the jury. Anthony stated that they went to the 7-Eleven to rob it, and Brooks agreed. They did not want the guard to pull a gun out. Brooks said he had a gun and “knew about my part.” He explained that his “part” was to keep a gun on the guard so he could not pull his gun out. Anthony stated that his job was to pick up whatever he could, either money or goods. Anthony knew Brooks had a gun. Both men had seen an armed security guard in the store before.

Anthony stated that he initially went to the candy area and remained there until the struggle started between Brooks and Miller. Then he went over and tried unsuccessfully to grab the security guard’s gun and pull it out of the holster so that the guard would not shoot anybody. Anthony said that Brooks said, “[A]ll right, I’ll leave,” and they started to leave. Brooks stated that as he was pulling the gun away, he pulled the trigger and it went off. He told police that the shooting was an accident and he did not mean to do it.

Derek was arrested on November 15, 2001, and interviewed by police that day. A tape of the interview was played for the jury. Derek had been to the Oakland 7-Eleven two or three times. He had been there twice when there was an armed security guard present. On the night of October 31, 2001, defendants went to a 7-Eleven near Mills College. They did not talk about robbing that store, but a robbery was mentioned. They knew they were going to commit a robbery because it was discussed inside the car. They used the same pistol that was used in the San Leandro robbery. It was a “turf gun” that did not belong to any one of them in particular. Derek thought he mentioned to the others that there was a guard in the Oakland store. Asked if he mentioned it because they had decided to rob the store, Derek said, “Yeah.” He went in and bought some beef jerky. When he paid for the jerky, a gun was pulled and he ran out of the store. He heard a gunshot and kept running, ending up near a school. The next day, Derek ended up with the gun that was used. He hid it near his house, but it was gone the next day when he went to retrieve it.

Derek was interviewed a second time that evening by a deputy district attorney and police inspector, and a tape of the second interview was also played for the jury. Asked why he went to the Oakland 7-Eleven, Derek first said that he did not know, then that he guessed he went there to commit a robbery. The idea was to get cash from the cash register, not to grab things off the shelf. They parked the car on the side of the store, even though the parking lot in front was not full. Derek said that he considered the fact that there was a guard there, but went in anyway. He had seen the gun in the car but did not know whose it was. He didn’t know it was loaded until he heard the gunshots later. He was not sure what he was supposed to do; he was just scared and froze up. He stated that he paid for his beef jerky and then “[t]he dude had closed the register back up real quick.”

2. Defense Case

Brooks was the only defense witness. He admitted that he shot Miller, but denied there was an attempted robbery. He was only planning to buy beer and cigarettes at the store. He had purchased the gun that he shot Miller with for protection a few months earlier. At first, Brooks kept the gun in a closet at his girlfriend’s house. Then, about a month before the shooting of Miller, Brooks was robbed in the parking lot of a convenience store. Not wanting to be robbed anymore, he began keeping the gun under the front seat of his car.

Although Brooks admitted participating in the robbery of the San Leandro 7-Eleven with Anthony and Derek, the gun used in that robbery was not the same one that he shot Miller with. It was Anthony’s idea to go to the San Leandro 7-Eleven. He told Brooks he wanted to rob it, but he did not go into details. It did not concern Brooks. Anthony asked Brooks to take him to the San Leandro store to rob it, and Brooks did so. Anthony had a gun with him, but Brooks did not. Brooks thought Anthony would use the gun, but he did not consider the possibility that he would fire it. He went into the store to help Anthony as a lookout. They split the money evenly among them but had not agreed beforehand to do so.

On the day of the shooting, Brooks drank a lot of beer and Hennessy, and took some ecstasy pills. He attended a Halloween party and drank a couple more beers. On the street outside, he ran into Derek and Anthony and told them he was going to a motel to buy more ecstasy. He invited them to join him. As he got into the car, Brooks took the gun from underneath the seat and put it in the right pocket of the jacket he was wearing. He did so because buying drugs at the motel was dangerous.

Brooks decided on his own to stop first at the 7-Eleven to purchase beer and cigarettes. There was no discussion in the car about a robbery. He parked on the side of the store because the parking lot was busy and the reverse gear in his car did not work. Brooks had been to the store many times before and knew there was an armed guard there. Inside the 7-Eleven, the guard told him to put his cigarette out; he went outside and got rid of it. As he walked past the guard on his way to the beer cooler, the guard noticed the gun sticking out of his pocket. As soon as Brooks walked past Miller, Miller grabbed the handle of the gun with his right hand. The gun caught on Brooks’s pocket and Miller did not get it out. That was when they began tussling over the gun for what seemed like two or three minutes. Brooks was feeling the effects of alcohol and ecstasy and his sense of time may have been distorted.

Anthony came over and asked what was going on. When the guard started to reach for his own gun, Anthony tried to stop him from taking it out. Brooks never tried to get the guard’s gun. When he got his own gun free, it discharged accidentally as he was backing up. He was in a daze and had no clear memory of this, but he admitted that his hand was on the trigger and that the gun was pointed toward the guard. Although he pulled the trigger, the gun fired accidentally.

Brooks gave Anthony the gun so he could drive. He never saw the gun again. He did not see or speak to Dwayne Chandler that night and never spoke with him about the shooting. He met with Derek and Anthony about a week later and he told them to tell the police that it had been a robbery because he thought it sounded better than that he was a “cold-blooded killer.” He did not want to be accused of a senseless killing, and wanted Anthony and Derek to help him by lying. In his own statement to Longmire he tried to convince him it had been a robbery. He did not want to tell Longmire the gun was his, because he felt it would make him look bad.

C. Verdicts, Sentences, and Appeal

On February 9, 2005, the jury found all three defendants guilty of first degree murder. The jury also found the special circumstances allegations true as to Brooks and Anthony, but not true as to Derek. The jury found the arming allegations true as to Anthony and Derek, and the personal use allegation true as to Brooks, but it found not true the allegations that Brooks had personally and intentionally discharged a firearm.

The trial court sentenced Brooks to life in prison without the possibility of parole, plus 10 years for the gun use enhancement. Anthony also received a sentence of life without the possibility of parole, with an additional one-year sentence for the arming enhancement.¹⁰ Derek was sentenced to an indeterminate term of 26 years to life in prison, with an additional sentence of one year for the arming enhancement.

10 Brooks’s and Anthony’s base sentences will hereinafter be referred to by the common acronym, LWOP.

All of the defendants timely appealed.

III. DISCUSSION

A. Jury Selection

Defendants contend that the trial court erred when it accepted the prosecutor’s stated reasons for challenging three African-American jurors—Jurors B., S., and F.—and on that basis denied the defense’s Batson-Wheeler motion.

1. Facts

Voir dire of prospective jurors and alternates was conducted on eight days—December 14, 15, 16, 20, and 21, 2004, and January 4, 5, and 10, 2005. Peremptory challenges began on December 15. On December 16, the prosecutor exercised her sixth and eighth peremptory challenges to excuse two African-American prospective jurors, Juror B. and Juror R. This prompted the defense to make a motion pursuant to Wheeler, on state constitutional grounds only.

The defense noted that two other African-American jurors had been excused for cause or by stipulation, and there were at that time no other African-American jurors among the 12 seated in the box. The court pointed out that several African-American jurors had been excused for hardship and one had failed to appear. It found no prima facie case of racial discrimination, but gave the prosecutor the choice of explaining her challenges to Jurors B. and R. She did so.

The prosecutor stated that she had numerous reasons for excusing Juror B. Juror B. was a single mother who had her first child at age 18 and her second at age 21, by different fathers. Although Juror B. had worked for the last 12 years in a relatively conservative environment—the clerk’s office of a federal bankruptcy court—the prosecutor believed that Juror B. seemed to have a very nontraditional and “kind of counter cultural” lifestyle, based on her personal appearance and lifestyle choices. Regarding Juror B.’s personal appearance, the prosecutor cited her “red streakish hair.” She believed Juror B. was “not someone who would be . . . a conservative juror that would convict somebody.” The prosecutor was also concerned that Juror B. seemed “very eager” to get on the jury, because she had said she was “concerned about giving incorrect answers” and seemed not to be “completely candid about . . . her feelings.”¹¹

11 Defendants are not challenging the exclusion of Juror R. on this appeal. That juror had commented that he felt the Oakland Police Department targeted Black men, stated that he was suffering memory loss and might not be a good juror, and seemed to the prosecutor to be “very reluctant to serve on this jury.”

The defense argued that some of the prosecutor’s stated reasons were contradictory insofar as Juror B. was too eager to serve on the jury but Juror R. was too reluctant. The defense also challenged the portrayal of Juror B. as nontraditional in light of the fact that she worked for a federal court, had moved to a different community so her children could attend better schools, and described her spare time activities in her questionnaire response as staying at home with her daughters, going out with family and friends, and going to movies or church. The defense also noted that Juror B.’s hair color was “quite a common thing today.”

The trial court stuck by its original ruling that defendants failed to make out a prima facie case of discrimination but commented that the issue was “much, much closer . . . as to [Juror B.] than it was as to [Juror R.].”

On January 4, 2005, the prosecutor used her 17th, 21st, and 24th peremptory challenges to excuse three African-American prospective jurors—Jurors C., S., and F., respectively. The defense renewed its Batson-Wheeler motion, pointing out that the prosecution had excused three more African-American prospective jurors, leaving none remaining on the jury. This time, the court found that a prima facie case of racial discrimination had been made out and required the prosecutor to state her reasons for excusing the three jurors.

The prosecutor explained that she excused Juror C. because Juror C. was an attorney and she felt the other jurors would defer to an attorney in deliberations. Juror C. also expressed distrust of the criminal justice system and felt the system was unfair to poor people. On this appeal, defendants do not challenge the trial court’s acceptance of the prosecutor’s reasons for excusing Prospective Juror C.

As to Prospective Juror S., the prosecutor asserted that she had been charged with felony welfare fraud and perjury in 2001, eventually pleading guilty to misdemeanor welfare fraud under a plea agreement. According to the prosecutor, Juror S. had implied that she was put in a diversion program, and was not forthright in disclosing that she had in fact sustained a criminal conviction and might have still been on probation. The prosecutor also stated that Juror S. admitted she would have a hard time applying the felony-murder rule to an aider and abettor, although she also indicated that she would be able to follow the law. The prosecutor pointed to several White male jurors whom she had excused for that same reason.

As for Prospective Juror F., the prosecutor explained that she was a senior legal document specialist at a law firm and the prosecutor was concerned that the other jurors would tend to defer to lawyers or “quasi-lawyers” in deliberations. The prosecutor pointed out that she had previously excused a court administrator who was not an actual lawyer, but who had a juris doctor degree and whose wife was a lawyer, because it was her practice to excuse all “lawyers, semi-lawyers, [and] quasi-lawyers on the panel.” She also expressed concern about Juror F.’s view that, according to statistics she had learned about in her political science classes, the criminal justice system treats minorities unfairly.¹² The prosecutor stated that Juror F. had initially denied holding any negative views of the criminal justice system when she first began to probe her on that subject. As further reasons, the prosecutor expressed concern that Juror F. “perhaps oversees and possibly critiques” the work of attorneys, and might scrutinize the prosecutor’s work. According to the prosecutor, when she had jokingly asked Juror F. whether she disliked attorneys, Juror F. had not denied it. Finally, the prosecutor was concerned that Juror F. seemed to be falling asleep for most of that afternoon’s proceedings and “perhaps was not interested in the whole process.”

12 According to the transcript of the proceedings on defendants’ Batson-Wheeler motion, the prosecutor twice stated that Juror F. had expressed the view that statistics show the criminal justice system treats “minors” unfairly. Each time, the court reporter inserted a “sic” after the word “minors” in the transcript. In fact, when the prosecutor had questioned Juror F. about her views on the criminal justice system, Juror F. had stated that statistics showed “minorities” were unfairly treated; she made no reference to the treatment of “minors.” We assume that the prosecutor simply misspoke if she used the latter word.

The defense contended that Juror S. was candid in her answers about her criminal history and may have simply misunderstood the precise disposition of her prior case. The defense also challenged the prosecutor’s assertion that she excused all prospective jurors who, like Juror S., questioned the fairness of felony-murder liability for an aider and abettor, noting that Juror No. 8, who was ultimately seated as a juror, raised similar concerns. As for Prospective Juror F., the defense argued that she said nothing to indicate any antipathy to attorneys. She had her eyes closed at times, as did many of the prospective jurors, but she was not sleeping.

The trial court noted that the prosecution had excused 24 prospective jurors, five of whom were African-American. The court stated that this was a concern, and that it would be watching the situation closely, but that it was satisfied with the prosecution’s race-neutral explanations for excusing Prospective Jurors C., S., and F.

Defendants renewed their Batson-Wheeler motion when the prosecutor exercised her 26th peremptory challenge to excuse a sixth African-American prospective juror, Juror M. The prosecutor explained that Juror M. had at least five family members who had either been arrested, charged, or prosecuted by the district attorney for crimes in the previous year, including a cousin convicted of the same underlying felony that is involved in this case—attempted robbery. Juror M. had attended the cousin’s court proceedings once or twice. The defense argued that Juror M. was candid, showed no hint of animosity toward the district attorney’s office, and gave her assurance that she could set aside what had happened to her relatives.

The trial court accepted the prosecutor’s race-neutral reasons for her challenge to Juror M. and again denied the defense motion. Defendants do not contest the exclusion of Juror M. on this appeal, although they also do not concede that the prosecutor’s reasons were credible.

The jury sworn in to hear the case had no African-American jurors. The prosecutor used peremptory challenges against three prospective alternate jurors, a White male, a White female, and an Asian male. Two of the four alternates were African-American. None of the alternates ultimately served on the jury that decided the case.

2. Standard of Review

Defendants contend that each of the prosecutor’s stated reasons for excusing Prospective Jurors B., S., and F. were either unsupported by the record, inherently implausible, or both unsupported and implausible.

The trial court evaluates a Batson-Wheeler motion in a three-step process. (People v. Silva (2001) 25 Cal.4th 345, 384.) “ ‘[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.’ ” (Ibid., quoting Purkett v. Elem (1995) 514 U.S. 765, 767.)

The defendant satisfies his prima facie burden in step one by producing facts that give rise to an inference of discriminatory purpose. (Johnson v. California (2005) 545 U.S. 162, 170.) The determinations required by steps two and three are more complex: “In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, ‘the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .’ ” ’ ” (People v. Guerra (2006) 37 Cal.4th 1067, 1100.) Implausible or fantastic justifications may be found to be pretexts for purposeful discrimination. (Purkett v. Elem, supra, 514 U.S. at p. 768.) Reasons that are contradicted by the record may be evidence of such discrimination. (McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1221–1222; Caldwell v. Maloney (1st Cir. 1998) 159 F.3d 639, 651.) However, the justification offered need not be sufficient to support a challenge for cause, and even “ ‘trivial’ ” or “ ‘ “highly speculative” ’ ” reasons, if genuine and neutral, will suffice. (People v. Arias (1996) 13 Cal.4th 92, 136; People v. Ervin (2000) 22 Cal.4th 48, 77.)

“[T]he trial court is in the best position to determine whether a given explanation is genuine or sham.” (People v. Fuentes (1991) 54 Cal.3d 707, 720.) Therefore, when the trial court has engaged in a sincere and reasoned attempt to evaluate the stated reasons offered for the exclusion of each challenged juror, we accord great deference to its rulings that the prosecutor’s stated reasons are genuine, reviewing them under the substantial evidence standard. (People v. Jurado (2006) 38 Cal.4th 72, 104–105; People v. Silva, supra, 25 Cal.4th at pp. 385–386.)

3. Analysis

Based on our review of the record, we are convinced that the trial court made a sincere and reasoned effort to evaluate the prosecutor’s race-neutral justifications as to each of the jurors in question. We therefore limit our inquiry to whether there is substantial evidence in the record to support the trial court’s rulings as to the genuineness of the prosecutor’s stated reasons.

Juror B.

Defendants concede that a juror’s nonconformism or nontraditional lifestyle may be an acceptable, race-neutral reason for a peremptory challenge. (See People v. Ayala (2000) 24 Cal.4th 243, 261 [“ ‘nonconformist’ ” jurors]; Wheeler, supra, 22 Cal.3d at p. 275 [prospective juror whose “clothes or hair length suggest an unconventional lifestyle”].) A juror’s eagerness to serve may also constitute a sufficient, race-neutral reason supporting such a challenge. (People v. Ervin, supra, 22 Cal.4th at p. 76.)

At Anthony’s request, this court directed the trial court to hold a hearing to settle and supplement the record to more fully describe Juror B’s hair and appearance. The trial court held the hearing on March 10, 2006, at which time the prosecutor and defense counsel put their conflicting recollections of Juror B.’s physical appearance on the record. The trial court clerk also answered questions about her recollections of Juror B.’s appearance, and the court added its own recollections.

With respect to Juror B., we find that the trial court could reasonably have found that the prosecutor’s stated reasons for excusing her were genuine. First, although defense counsel disputed whether the reddish streak in Juror B.’s hair was so distinctive as to suggest a nonconformist or nontraditional lifestyle, this court is in no position to second-guess the trial court on an issue of that nature. (See People v. Sims (1993) 5 Cal.4th 405, 430 [because prospective juror’s immaturity cannot be gauged from the cold record, reviewing court must rely on the trial court’s good judgment to evaluate whether that stated reason was bona fide].) We note that at the settlement hearing, the trial judge stated that he remembered Juror B. because of the “orangish-red streak to her hair,” that he took notice of her hair coloring and style, and that he considered that her hair had a distinctive, although not a unique look. On this point, although the inference the prosecutor drew from Juror B.’s appearance might have been unreasonable, substantial evidence supports the trial court’s conclusion that it was sincere.¹³

13 “The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.” (People v. Reynoso, supra, 31 Cal.4th at p. 924.)

Second, defense counsel also questioned the prosecutor’s purported reliance on the fact that Juror B. had had children by two different fathers at a young age and never married, as further evidence of her nontraditional lifestyle. Counsel pointed out that the prosecutor failed to question or challenge another alternate juror who lived an unconventional lifestyle in that he had lost touch with his daughter when she was 17 years old, and had had no contact with her in several years. (See Miller-El v. Dretke (2005) 545 U.S. 231, 241 [evidence that reason offered for excluding African-American juror was not applied to challenge non-African-American jurors may tend to prove purposeful discrimination].) However, we do not find the parallels between these jurors to be so significant as to compel an inference that the prosecutor’s statements about Juror B. must have been a sham. In general, alternate jurors are not similarly situated to jurors originally sworn to hear the case for purposes of comparative analysis. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1018, fn. 13.) Further, there are many reasons why a father might become estranged from his daughter—a serious conflict with her or her mother, for example—that would not reflect a choice on his part to live a nontraditional lifestyle.

Because substantial evidence supports the trial court’s determination that the lifestyle concerns raised by the prosecutor were genuine, we need not consider the prosecutor’s other stated reasons.

Juror S.

There is no dispute that the record supports at least two of the reasons offered by the prosecutor for excusing Juror S. Juror S. had in fact been charged and prosecuted by the district attorney’s office for welfare fraud and perjury a few years earlier, and she did express significant reservations about applying the legal rules on aider and abettor liability that were essential to sustaining the charges asserted in this case.¹⁴ Either reason alone, if genuinely motivating the prosecutor’s challenge, would have furnished a race-neutral reason for her action.

14 Juror S. was consistent in expressing reservations about the aider and abettor rules. She stated: “I understand what the law says, and I’m okay with that, but it would be hard to make a decision. I mean it would be hard to—it would be hard to, you know, to say that the person that was aiding, to charge him with murder.” She also agreed when the trial court asked her: “Sounds like you are uncertain enough about it where you are telling us it may cause you some problems?” At a later point, when the prosecutor asked her if she would “have any difficulty” finding persons “who didn’t do the . . . actual shooting, guilty of first-degree murder,” she responded, “I think I would.”

We find no persuasive evidence in the record undermining the court’s ruling that these reasons, singly or in combination, were genuine. Defendants name various other jurors who, they contend, voiced similar reservations about the aider/abettor rules but were not challenged by the prosecution. However, unlike Juror S., none of these jurors had been prosecuted by the district attorney’s office for and convicted of a crime involving dishonesty, or had offered an inaccurate description of the disposition of their case. Moreover, based on our review of the record, these jurors seemed less troubled by the aider/abettor rules than was Juror S.¹⁵ With only a limited number of peremptories available, it would not be illogical for the prosecutor to refrain from challenging jurors whose reservations about the aider/abettor rules were more mildly stated than Juror S.’s, and whose assurances about being able to follow the law she found more credible. Further, the jurors defendants cite in their comparative analysis may well have had other, pro-prosecution qualities that Juror S. lacked.

15 For example, Juror No. 4 said it “would be a little harder” to convict an aider and abettor of murder, but said she would “think” she could return a guilty verdict. Juror No. 10 said she would “feel slight discomfort” about convicting a defendant who was not the “trigger puller” but would “definitely keep any personal opinions away” from his decision. Juror No. 12 came closest to Juror S. in that she admitted having “a dilemma with the aiding and abetting-type situation,” but when asked whether she would have “difficulty” finding nonshooters guilty of first degree murder, Juror No. 12 stated that whether she would have a difficulty “would depend on the evidence that was proven.” She went on to say that she would be able to return a guilty verdict on first degree murder charges against the nonshooters if the evidence proved beyond a reasonable doubt that they committed an attempted robbery that resulted in a killing.

In our view, defendants failed to carry their burden of demonstrating error in the trial court’s finding that the prosecutor dismissed Juror S. for genuine, race-neutral reasons.

Juror F.

Defendants attack the prosecutor’s claim that she consistently excused all “lawyers, semi-lawyers, [and] quasi-lawyers” from the jury panel. They cite three panel members whom they contend fell into that category but were not challenged by the prosecution. We do not find the counter-examples very probative.

Prospective Juror T. had worked for a sheriff’s department 20 years earlier for approximately two years. For part of that period, he had spent extensive time in courtrooms, both testifying and working as a bailiff. This is simply not comparable to Juror F. who was currently working for a law firm and was much more engaged in the field of law than the former sheriff’s department employee. If anything, Juror T.’s background would have made him appealing to the prosecution. He was in fact excused by the defense.

Another juror cited by the defense, Juror A.T., had a degree in criminal justice administration and had considered a career in that field. However, Juror A.T. had left the criminal justice field eight years earlier and was working as an airline pilot. As the People point out, Juror A.T.’s background and attitudes would have made him seem distinctly pro-prosecution. He worked in “loss prevention” for a department store chain and had apprehended some 75 persons in that capacity, evidently for theft. He had a “very positive” relationship with the police in that job and had positive attitudes about the criminal justice system. It is not difficult to understand why the prosecution would have preferred Juror A.T. to be on the jury compared to Juror F., for reasons entirely unrelated to race.

Finally, defendants cite Juror No. 7, a political consultant who had worked on political campaigns for judges and district attorneys. In our view, compared to a person whose professional career consists of assisting lawyers in handling legal cases, a campaign consultant does not present nearly the same risk of being attributed with special legal expertise by fellow jurors. The prosecutor’s failure to challenge Juror No. 7 does not reflect on the sincerity of her reasons for excusing Juror F.

Juror F. was further distinguished from other jurors by her statement that the criminal justice system treats minorities unfairly. Although one juror, Juror G., opined that the justice system “favors those who have more resources,” Juror G. also stated that most of the world’s justice systems share the same limitation and that our system “is the best system that we know of.” The prosecutor could reasonably distinguish between Prospective Jurors F. and G. without calling the genuineness of her concern about Juror F.’s criminal justice views into question. The fact that the prosecutor did not question all jurors in depth about their views on this abstract issue is also not very probative. Adapting her inquiries to the unique information elicited from each prospective juror is hardly evidence of the prosecutor’s insincerity or dishonesty.

In sum, substantial evidence supports the trial court’s rulings that the prosecutor had genuine, race-neutral reasons for excusing each of the jurors in question.¹⁶

16 Defendant Brooks’s statistical analysis of the prosecution’s peremptory challenges does not convince us otherwise. His analysis includes challenges to three African-American jurors that the defense has chosen not to raise on this appeal, evidently because the prosecutor’s stated reasons seem unobjectionable in those cases. Brooks also does not consider the two African-American jurors who were alternates. The asserted statistical disparities Brooks relies on evaporate when these factors are taken into account. Brooks’s claim that the prosecutor also tended to disproportionately accuse the African-American jurors of dishonesty is undermined by the fact that there is no record for comparison purposes of the prosecutor’s reasons for challenging each non-African-American prospective juror.

B. Issues Relevant to First Degree Murder Convictions

1. Admission of Sergeant Longmire’s Expert Opinion Testimony

Anthony and Brooks argue that the trial court prejudicially erred in allowing Sergeant Longmire to testify that defendants demonstrated a “common method of committing robbery” and that the Oakland 7-Eleven robbery showed the same methods as the San Leandro robbery.

A critical issue at trial was whether or not defendants intended to rob the Oakland 7-Eleven. Both the felony-murder rule and the special circumstance finding hinged on the jury’s resolution of that issue. In support of her case for attempted robbery, the prosecutor questioned Sergeant Longmire about his interpretation of defendants’ actions as seen in the Oakland and San Leandro 7-Eleven surveillance videotapes. The prosecutor asked Longmire if he was “familiar with the method of robbery as seen on the videotape and described by each of the defendants.” Defendants objected on the grounds that the question was vague as to what “method” meant, and compound. Without objection, the court thereupon rephrased the question as follows: “Was there anything in particular about this robbery that you recognized as a common . . . method of committing a robbery based on your experience.” Longmire responded in relevant part: “The way the men all kind of come together around the cash register, particularly how they waited and allowed for . . . the other patrons, to actually leave before getting started with the offense.” In response to further questioning, Longmire explained, without objection, that coming together around the cash register and giving other patrons the opportunity to leave before starting the robbery is a “common method” of committing a robbery. The prosecutor asked him how Derek’s purchase “factor[s] into the common method of robbery.” Defense counsel reiterated its vagueness objection, whereupon the court asked the witness whether and how the fact that Derek made a purchase factored into his experience in terms of how robberies might be committed. Longmire explained that handing money to the clerk might be the trigger point for a robbery—it would get the clerk to focus on him and open the cash drawer, facilitating the robbery. Derek’s counsel asked that the answer be stricken as speculation because the witness said it “could” have been a trigger point.

The defense now argues that this testimony was inadmissible because it constituted improper “profile” evidence and because its subject matter was not sufficiently beyond common experience that an expert opinion was necessary to assist the trier of fact. As an initial matter, we agree with the People that the defense failed to preserve these issues for appellate review by timely objecting on these grounds in the trial court. It was not “futile” to object on the grounds now cited merely because the court framed some of the questions. The court reframed the questions in response to defendants’ vagueness objections. Had defendants objected on a ground other than vagueness, there is no reason to assume the court would have responded in the same fashion. Further, Derek’s motion to strike the trigger-point testimony as speculation cannot be construed to encompass the claim that this was not a proper subject of expert testimony. Even had that objection been properly preserved for our review, we would reject it on the merits. Typical methods of initiating a store robbery are not within the common knowledge of jurors.

Defendants also assert that the trial court erred in allowing Longmire to testify that, based on his experience, the method used in the San Leandro robbery and the Oakland incident were “quite the same.” Asked to elaborate, Longmire explained that in both cases the three men entered the store, with two approaching the cash register, and the third drifting. At trial, defendants objected to the prosecutor’s questions on this point as “vague and irrelevant” or “asked and answered.” On appeal, defendants argue that the testimony added nothing that would not have been apparent to the jurors from viewing the videotapes, and included an improper opinion on the ultimate issue of whether the Oakland incident was an attempted robbery.

First, Longmire’s testimony did add a perspective not necessarily apparent to lay jurors viewing the videotape—that seemingly innocuous or random movements and actions can be preliminary steps in carrying out a robbery. In closing argument, defendants in fact tried to persuade the jurors that the tape exonerated them of attempted robbery. According to Anthony’s counsel, the tape was “totally and completely consistent” with Brooks’s testimony that there was no robbery attempt. Brooks’s counsel argued to similar effect. The prosecution was entitled to meet its burden of overcoming these anticipated arguments by introducing opinion evidence that the tape was in fact consistent with an interrupted robbery attempt.

Second, Longmire did not render an improper opinion that defendants committed an attempted robbery. Anthony points out that in People v. Torres (1995) 33 Cal.App.4th 37, the Second District held that it was error to admit a police officer’s testimony that, in his opinion, the defendant had committed the crime of robbery rather than the crime of extortion. (Id. at pp. 47–48.) At the same time, the Torres court was careful to observe that opinion testimony going to an element of a crime is permissible in some cases. (Id. at p. 47.) Despite the panel’s general observation that robbery was not “ ‘sufficiently beyond common experience’ ” that the jury needed an expert to determine whether it had been committed (ibid.), Torres did not hold that opinion testimony was never admissible to prove an element of attempted robbery. Here, Longmire’s testimony was useful to the jury in deciding—in the words of the jury instruction defining “attempt”—whether defendants’ actions inside the store constituted “direct but ineffectual act[s] done toward [the] commission” of a robbery or whether the acts “clearly indicate[d] a certain, unambiguous intent to commit” robbery. Although Longmire inadvertently (and incorrectly) referred to the Oakland incident as a “robbery” at one point in his testimony, he was not asked for and did not offer an opinion that defendants had committed an attempted robbery of the Oakland 7-Eleven.

In sum, defendants’ current objections to Longmire’s opinion testimony were not timely interposed at trial, and are therefore not cognizable on this appeal. In any event, the subject matter to which Longmire testified was appropriate for expert opinion.

2. Improper Vouching for Chandler’s Credibility

Anthony and Brooks contend that the trial court erred in admitting evidence that Sergeant Longmire and the magistrate who issued the arrest warrants believed Dwayne Chandler’s initial statements to police were credible. These statements included Chandler’s claim that all three defendants had personally admitted to him that they attempted to rob the Oakland 7-Eleven store, a claim Chandler recanted at trial.

Over a vagueness objection, the prosecutor asked Longmire about his “impression” of the details Chandler had provided of his conversation with Derek. The court asked Longmire whether he understood the question and allowed him to answer it when he said he did. Longmire responded that Chandler’s information “appeared accurate.” The prosecutor then asked Longmire for his impression of the account Chandler gave him about his conversation with Brooks. Brooks’s attorney objected that the question was inappropriate for a nonpercipient witness. The court overruled the objection, and Longmire stated: “It appeared to be pretty accurate.” Over defense objections that Longmire’s opinion about Chandler’s credibility was irrelevant and invaded the province of the jury, Longmire testified that he did not necessarily believe everything Chandler had told him, but that the essential facts in the probable cause affidavit were things that he did believe and that he found were corroborated by reviewing the tapes and by Chandler’s identification of defendants from a photo lineup.

The court also permitted Longmire to testify about bringing Chandler to a hearing before the magistrate who issued the arrest warrants. Longmire testified that the information Chandler provided to the judge was consistent with what he had told Longmire previously, and that after questioning Chandler the magistrate signed the arrest warrants. Later, under cross-examination by counsel for Anthony, Longmire testified that he felt reassured after the hearing. On redirect, the prosecutor asked him to explain why. In the course of his answer, Longmire started discussing questions the magistrate had asked Chandler. This drew a defense hearsay objection. The court allowed Longmire to continue on the condition that his testimony was to be admitted to explain how he conducted his investigation, not for its truth. When he completed his answer, Longmire briefly touched on the magistrate’s questions and then stated that the questions made him feel good that Chandler’s information had been “tested” by someone other than himself. Defendants made no objection or motion to strike directed at that portion of Longmire’s testimony

Defendants point to cases holding that officer opinions about the veracity of witness statements are improper (see, e.g., People v. Smith (1989) 214 Cal.App.3d 904, 914–916), and that preliminary court or grand jury findings are inadmissible at trial (see, e.g., People v. Whitehead (1957) 148 Cal.App.2d 701, 706).

We reject defendants’ claims on three grounds. First, with one exception, defendants waived their present claims by failing to raise them at trial. The objection Brooks’s trial counsel made to Longmire’s testimony about whether he believed what Chandler told him—that it invaded the province of the jury—does adequately preserve the vouching objection as to the ensuing testimony that he prepared the affidavit based on the essential facts provided by Chandler that he believed, and that were corroborated by other information available to him. With that exception, defendants’ trial objections cannot reasonably be construed to encompass improper vouching or improper reference to pretrial proceedings.

Second, as to the merits of the preserved claim, we believe Longmire’s testimony on this point was admissible because it arose after Chandler had recanted his statements to the police and impliedly put the integrity of Longmire’s investigation into question. Chandler’s testimony would have suggested to jurors that Longmire: (1) implicitly encouraged him to fabricate by priming him with details about the Oakland 7-Eleven incident; (2) ignored indications that Chandler’s statements were unreliable because he was suffering from obvious heroin withdrawal symptoms when he spoke to him; and (3) arranged to have Chandler hastily released before satisfying himself that his accusations were credible. In the context of Chandler’s testimony, Longmire’s statement that he found Chandler’s statements to be credible, and corroborated by other information, were admissible to refute the suggestion that Longmire’s dealings with Chandler undermined the reliability of the police investigation.

Finally, any assumed error in allowing Longmire to testify that he believed Chandler’s statements to be credible was harmless. Defendants’ later statements about the crime matched up closely with the information Chandler had provided, as did the videotape and eyewitness testimony about the Oakland robbery. These consistencies provided far stronger corroboration for the veracity of Chandler’s statements to Longmire than any alleged “vouching” testimony by him. Moreover, the jury had a chance to observe Chandler testifying on the witness stand, and to judge for itself whether his trial recantation was credible or not. With all of this other information available to it, there is no reasonable likelihood that the jury would have reached a different conclusion but for Longmire’s comments on the subject.

3. Failure to Instruct with CALJIC No. 3.20

Defendants contend that the trial court erred in failing to give the following cautionary instruction, which they requested be given in conjunction with the testimony of Chandler: “The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating this testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard this testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in this case.” (CALJIC No. 3.20.) The trial court refused the instruction on the ground that Chandler was not an “in-custody informant.” The court did give the following instruction, as part of the standard witness credibility instruction: “In determining the believability of a witness, you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including . . .: [¶] . . . [¶] [t]he witness’s anticipation or expectation of any reward or benefit in exchange for the giving of testimony or a previous statement used as testimony.”

As defendants concede, Chandler did not meet the statutory definition of an in-custody informant, which is limited to “a person . . . whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution.” (§ 1127a, subd. (a).) In this case, no part of the statutory definition was applicable. First, Chandler’s trial testimony—which recanted his earlier statements to police—was not based upon any statements made by defendants. Second, Chandler’s prior statements to the police were not based on admissions made by defendants at a time when either he or the defendants were in a correctional institution. Despite the statute’s inapplicability, defendants argue that the requested cautionary instruction, or some modification of it, was nonetheless required to be given (1) as part of the court’s general duty to instruct on general principles of law relevant to the issues raised by the evidence; and (2) to protect defendants’ federal constitutional rights to due process, trial by jury, confrontation, and counsel. Defendants cite no case law remotely supporting these propositions.¹⁷

17 Anthony cites United States v. Patterson (9th Cir. 1981) 648 F.2d 625, 630–631 and United States v. Gonzalez (5th Cir. 1974) 491 F.2d 1202, 1207–1208 for the proposition that it is error not to give a cautionary instruction similar to CALJIC No. 3.20 whenever an informant in custody or criminal jeopardy testifies about a defendant’s admissions, without regard to whether the defendant and informant were both in custody at the time. Of course, we are not bound by federal circuit court cases. (See People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) In any event, the Patterson and Gonzalez holdings were limited to situations in which the informant’s testimony supplies the only strong evidence of guilt. (Patterson, at p. 631; Gonzalez, at p. 1207.) In this case, Chandler’s statements to police were corroborated by the defendants’ own statements, eyewitness testimony, and the store videotapes.

According to defendants, the trial court had a duty to instruct the jury that it must view Chandler’s out-of-court statements with caution and close scrutiny in order to overcome the effect of the vouching evidence discussed earlier. Merely instructing the jury that it could consider the anticipation of benefits as a factor affecting credibility was not sufficient. But, for the reasons discussed above, no cognizable or prejudicial error was committed in allowing Longmire’s testimony and therefore no special, curative instruction was required as a result of it.

Further, it is simply not a correct statement of law or evidence that an informant’s statements to police are, in general, to be viewed with caution and close scrutiny. Here, the jury heard Chandler repudiate his statements to Longmire and heard him explain his asserted motivation for having lied when he made them. The trial court offered a neutral instruction on the issue raised by this testimony; it was not required to give an instruction bolstering that testimony.

4. Prosecutorial Misconduct

Defendants Anthony and Brooks contend that the prosecutor committed misconduct in her closing argument by improperly: (1) appealing to the jury’s passion and prejudice, (2) referring to the consequences of different verdicts, and (3) distorting the burden of proof.

a. Appeal to Passion and Prejudice

At the beginning of her closing argument, the prosecutor stated: “While we have been in this courtroom for about seven weeks or so, and the defendants have been here all that time, as they are entitled to, but along the way, I think we have lost track of another person. We have lost track of James Miller. [¶] We know that James Miller was a single father. He worked hard to provide for his four-year-old daughter.”

Brooks’s counsel, joined by Anthony’s counsel, objected on the grounds that the argument appealed to sympathy, passion, and prejudice. The trial court responded: “The jury has been instructed you are not to include anything that comes before you in terms of sympathy, passion or prejudice for either side.” The prosecutor went on to talk about the fact that Miller worked two jobs, had worked for six years at the 7-Eleven store, took pride in his job, and was well-liked by the customers. She continued as follows: “His goals and dreams and plans were shattered—shattered on [that] fateful night—by the defendants. [¶] So, what do we have left of James Miller other than, obviously, memories of family and of friends? All we have left of James is photos: Photos of him dead on the hood of a car—his car; autopsy photos that you have seen already; bloodstained uniform shirt. [¶] James Miller was a human being. You will never get to know the substance of James Miller.”

Later in her argument, the prosecutor speculated about what Miller’s last thoughts might have been: “James Miller at this point had two minutes left to live. Two minutes. What was he thinking during those two minutes? Was he thinking about why did these people have to come into the store and try to rob the store? Was he thinking about why did this young man have to shoot him? Why? He didn’t get his gun out and point it at him. He didn’t fire a shot at him. He didn’t threaten him. Why? Was he thinking about his daughter[?]” Brooks’s trial counsel objected. The court responded: “The jury has been instructed that sympathy is not to play a part.” The prosecutor continued: “Was he thinking about his family? His friends? Was he thinking about his job? How is he going to get to the second job now? [¶] Was he thinking about how difficult it is for him to breathe? We will never know, ladies and gentlemen.”

We evaluate a claim of prosecutorial misconduct in argument by determining whether there is a reasonable likelihood that the jury misconstrued or misapplied the prosecutor’s comments. (People v. Sanders (1995) 11 Cal.4th 475, 526.) There was no such likelihood here. We note first of all that, as the People point out, the prosecutor’s references to Miller’s personal life were brief in relation to the rest of the argument. Both times the defense objected, the court immediately reminded the jury of its instruction not to be swayed by sympathy, passion, or prejudice. Absent evidence to the contrary, we presume that the jury followed this instruction. (See Drayden v. White (9th Cir. 2000) 232 F.3d 704, 713.) Various facts tend to confirm that this presumption is sound. The jury’s deliberations were extended. During deliberations, the jury sent out questions focusing on the evidence and the charges. Ultimately, the jury did not find for the prosecution on all of the charges. (See People v. Arias, supra, 13 Cal.4th at p. 161.)

We find no prejudicial misconduct in the prosecution’s references to the victim’s personal life.

b. Prosecutor’s Asserted Reference to Possible Consequences

The prosecutor urged the jury not to give in to any temptation to give defendants “a break”: “Now, as we are all human beings, we have within us a humaneness, and the humaneness is that we can have feelings of sympathy, and we want to give people a break. [¶] [I]t’s so very important that you be able to set aside those feelings—not that you don’t have them, you wouldn’t be human if you don’t have those feelings—but you must be able to set aside those feelings and rely on the facts and the law. [¶] And the law, ladies and gentlemen, is what you, each and every one of you, has promised to follow and to obey. [¶] Now, you would not be following the law if you gave the defendants a break in this case.”

The prosecutor returned to this theme in her rebuttal argument: “[Brooks’s lawyer] is asking you to . . . . give his client a break. To give him a break. Find him guilty of manslaughter of at the most second-degree murder. At the most. Find him guilty of that. Then, we can all feel good about what we have done: Somebody is held libel [sic]. They all go home.” Brooks’s lawyer objected, saying “ ‘They will all go home’ ” [sic] was a misstatement and an indication of a possible penalty. The court responded, “Let’s move on.” The prosecutor continued: “Now, ladies and gentlemen, if you do find [Brooks] guilty of either second-degree murder or manslaughter, make no mistake about it, you are giving him a break.”

We do not find it reasonably likely that the jury believed Brooks (or the other defendants) would “go home” if Brooks was not found guilty as charged. In context, the prosecutor intended the word “they” to refer to those jurors who might, wrongly, go home feeling good about what they had done if they brought back a conviction on a lesser charge. She was not referring to defendants. It seems highly unlikely that the jury understood this to mean that defendants would go home if convicted of manslaughter or second degree murder.

There was also nothing improper in the prosecutor’s argument that the jury should not give defendant Brooks “a break” by convicting him of a lesser offense. The thrust of her argument was that the evidence supported a conviction for first degree murder, and that if the jury found him guilty of a lesser offense, he would be getting “a break.” In context, it was not a reference to the different penal consequences of one verdict or another.

c. Distorting Burden of Proof

At the conclusion of her rebuttal argument, the prosecutor asked the jurors to place themselves at the scene of the shooting, looking in through the front windows and seeing all of the events unfold: “[Y]ou see Derek Brown move up to the cashier, casually grabs the beef jerky. [¶] And you see Anthony Brown move up right next to him, and you see Jermaine Brooks, he’s moving in closer towards—yeah, he moved towards the door, and now he’s moving back towards the security guard. [¶] Then you see Jermaine Brooks pull out a gun to the security guard, and then you see Iyad Allamarri close the register, put his hands up. [¶] Then you see the security you [sic] guard trying to push the gun away from him. [¶] Then you see Anthony Brown come in and try to grab the security guard’s gun out of his holster. [¶] And, by the way, you also recognize that these three defendants, you know they also robbed a 7-Eleven store just the night before. You know all of this and you see all of this. [¶] Do you have any hesitation getting into that store? If you don’t have reasonable doubt, you don’t have reasonable doubt of the defendants’ intent to rob the store, you don’t have reasonable doubt that James Miller was killed in the commission of this attempted robbery, they are guilty, guilty of felony murder first degree, all of them; and special circumstances are true; the firearm, use enhancements, intentional discharge enhancements, arming enhancements, all true. That’s the only reasonable verdicts you can come back with, ladies and gentlemen.”

According to Anthony and Brooks, the foregoing argument: (1) appealed to passion and prejudice by asking the jurors to imagine being personally present at such a scene, which would be frightening even if there was no robbery and the guard had initiated the encounter by trying to disarm Brooks; and (2) distorted the burden of proof by equating the jurors’ reasonable hesitation about entering the store in such circumstances with proof beyond a reasonable doubt of defendants’ guilt.

As an initial matter, defendants waived the present claims by failing to interpose a timely objection to the prosecutor’s argument at trial. (People v. Farnam (2002) 28 Cal.4th 107, 167.) These claims also fail on their merits, as does defendants’ related ineffective assistance claim. First, the prosecutor did not commit misconduct by asking jurors to imagine themselves at the scene of the shooting. The argument is simply not of a nature that it would have “frightened” the jurors and caused them to disregard the evidence and the instructions they had been given. In fact, it asked the jurors, properly, to focus on the evidence that this was an attempted robbery, not a tragic accident resulting from a misunderstanding between Miller and Brooks. Brooks pulls his gun first. The clerk puts up his hands. Anthony tries to grab the security guard’s gun out of his holster. The same men had robbed a 7-Eleven the night before. This is plainly an attempted robbery scenario, not the innocent mistake scenario Brooks had described. The prosecutor did not commit misconduct by asking the jurors to imagine how they would interpret these events using their common sense, if the events unfolded in real time before them.

Second, the prosecution’s argument also did not prejudicially distort its burden of proof. It is true that immediately after asking, “Do you have any hesitation getting into that store?” the prosecutor said, “If you don’t have reasonable doubt, you don’t have reasonable doubt of the defendants’ intent to rob the store . . . .” In our view, there is no reasonable likelihood that jurors properly instructed on the burden of proof—and aware of the defense evidence and theory of the case—would have taken this to mean that they had to find defendants guilty of first degree murder if they would have hesitated to enter a store in which men were struggling over a firearm. Although slightly garbled, the prosecution’s argument was not prejudicial.

Finding no prejudicial misconduct by the prosecutor in making the above-described argument, we reject defendants’ claim that trial counsel provided ineffective assistance by failing to timely object to it.

Defendant Brooks argues that the court erred by failing to give the strongly-worded, cautionary instruction suggested in People v. Bolton (1979) 23 Cal.3d 208, 215–216, footnote 5. Bolton does not hold that the court has a sua sponte duty to give such an instruction, and defense counsel did not request a Bolton-type instruction in this case. In any event, no such instruction would have been warranted.

Defendants are not entitled to a reversal due to asserted prosecutorial misconduct in closing argument.

5. Cumulative Error

Anthony and Brooks contend that the cumulative, prejudicial effect of the trial errors discussed above compels a reversal of their first degree murder convictions. Having found no substantial error or prejudice to cumulate, we reject defendants’ contention.

C. Issues Related to the Special Circumstance

Anthony contends that his LWOP sentence must be reversed because: (1) the sentences were unauthorized by law, (2) there was insufficient evidence to sustain the special circumstance finding, (3) defense counsel for Anthony was ineffective in his jury argument on the special circumstance, (4) the court’s instructions and verdict form misled the jury on the mental state required to find the special circumstance true, and (5) the sentences constitute cruel and unusual punishment. Defendant Brooks joins in issues (1) and (4), and supplements Anthony’s arguments regarding issue (5).

1. Lawfulness of LWOP Sentences

In this case, the prosecution alleged a special circumstance but announced that it would not seek the death penalty against any of the defendants. Anthony and Brooks argue that the law requires the prosecution to seek the death penalty whenever it charges a special circumstance, and that only the jury may decide—assuming they have found the defendant guilty of first degree murder and found the special circumstance is true—whether the defendant’s punishment will be death or LWOP.

Section 190.3 provides in relevant part: “If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, . . . the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole.” (Italics added.) Section 190.4, subdivision (a) provides: “If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing . . . .” Based on these statutes, defendants argue that “the plain language of our statutes only authorizes the trier of fact, after a penalty trial, to select an LWOP sentence. [Fn. omitted.] Conversely, nothing in [the relevant statutes] authorizes or contemplates the state obtaining an LWOP sentence independent of a capital prosecution.”

Defendants concede they offered no objection in the trial court when the prosecution decided to try the special circumstance charges without seeking the death penalty. In practical effect, defendants accepted the benefit of a noncapital prosecution, but now complain that they were denied their statutory right to face the risk of a death sentence. They ask this court to remedy this asserted deprivation by ordering that the special circumstance finding be stricken and that their sentences be modified to life with parole. According to defendants, no objection was required to preserve this issue for appellate review because their LWOP sentences were unauthorized by law, and thus come within the “narrow exception” to the contemporaneous objection requirement discussed in People v. Scott (1994) 9 Cal.4th 331, 354 (Scott). We disagree.

The Scott court explained the exception to the waiver rule for unauthorized sentences in the following terms: “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing. [Citation.] . . . [L]egal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement. [Fn. omitted.] It does not follow, however, that nonwaivable error is involved whenever a prison sentence is challenged on appeal. [Citation.] [¶] In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Scott, supra, 9 Cal.4th at p. 354.)

The Scott court went on to hold that complaints about the way a court exercises its sentencing discretion are waivable because the reviewing court cannot substitute or reweigh sentencing factors that were misapplied or omitted by the trial court. (Scott, supra, 9 Cal.4th at p. 355.) Such errors are therefore “not readily susceptible of correction on appeal.” (Ibid.) In contrast, Scott observed that it was well settled that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654. (Id. at p. 354, fn. 17.)

The issue raised by defendants here is not whether an LWOP sentence could be “lawfully . . . imposed under any circumstances” in the present case. An LWOP sentence is in fact authorized by law in the factual circumstances presented here. (See § 190.2, subd. (a).)¹⁸ In our view, defendants’ claim is simply that their sentences were imposed in a procedurally flawed manner, i.e., without a penalty trial at which the jury would decide whether to impose the death penalty or an LWOP sentence. Thus, defendants do not dispute that the jury—after convicting defendants of first degree murder and finding the special circumstance true—could have decided to impose such a sentence in lieu of imposing the death sentence. Defendants’ objection is simply that an LWOP sentence could not be imposed without such a procedure.

18 Section 190.2 provides in relevant part: “(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [¶] . . . [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the . . . attempted commission of . . .: [¶] (A) Robbery in violation of Section 211 or 212.5.” Section 190.4 establishes the procedures for making a special circumstance finding.

Moreover, the error defendants complain of, if upheld, could have readily been corrected in the trial court had timely objection been made. At that stage, the prosecution would have been able to choose between seeking the death penalty or dropping the special circumstance charge and seeking only a life-with-parole sentence against defendants. At this point, the prosecution would either have to acquiesce in the lighter sentence or be forced to try the penalty phase before a new jury that has not heard the guilt phase. The asserted error is thus “not readily susceptible of correction on appeal.” (Scott, supra, 9 Cal.4th at p. 355.)

For these reasons, we hold that defendants waived their present claim of sentencing error. In any event, even were we to find the objection nonwaivable, we would reject it. The language of the statutes in question does not plainly and unambiguously negate prosecutorial discretion to seek the lesser penalty of LWOP in a special circumstances case, and defendants have cited no ballot arguments or other materials establishing that this was the voters’ intent when sections 190.3 and 190.4 were enacted by initiative in 1978.

Defendants do cite a case construing California’s pre-1978 death penalty statutes, People v. Davis (1981) 29 Cal.3d 814 (Davis). The issue in Davis was whether a juvenile could be sentenced to life without parole under the former statutes. (Id. at p. 827.) Davis held that language in former Penal Code section 190.4 mandating a penalty hearing whenever a defendant is found guilty and a special circumstance is found true “demonstrates the absence of legislative intent to provide life without parole as a sentencing alternative except in those cases to which the death penalty might also apply.” (Id. at p. 831, italics added.) Defendants contend that the retention of language requiring a penalty hearing in section 190.4 demonstrates the Legislature’s lack of intent to provide an LWOP sentence in cases where the state declines to seek death. Defendants also cite Davis for the proposition that the legislative intent of the former statutes in setting LWOP as the alternative sentence in a special circumstances case was to ameliorate the unconstitutionally harsh effect of the former death penalty procedures, not to provide an enhanced sentence for first degree murder when a special circumstance could be proven.

Davis is distinguishable in two respects. First, it construes the state’s pre-1978 death penalty statutes, using legislative materials unique to those enactments. (See Davis, supra, 29 Cal.3d at p. 830 & fn. 8.) It does not speak to the voters’ intent in adopting the death penalty statutes that applied in this case. Second, Davis did not involve an exercise of prosecutorial discretion not to seek the death penalty, as in this case. The defendant in Davis was a juvenile who could not as a matter of law be sentenced to death. The sole issue in the case was whether the law authorized an LWOP sentence for juveniles. As we have noted, there is no question in this case that an LWOP sentence was authorized by law for these defendants, had the prosecution sought to obtain it.

In People v. George (1984) 157 Cal.App.3d 1053 (George), Division Four of this court specifically rejected the claim defendants are making here: “We hold that the 1978 death penalty law permits a sentence of life without the possibility of parole when an individual is convicted of first degree murder with special circumstances, regardless of whether the prosecution has exercised its discretion not to seek the death penalty.” (Id. at p. 1058.) The court explained: “If appellant’s position were to prevail, a prosecutor who wanted only a sentence of life without possibility of parole would have to expose the defendant to the possibility of death in order to achieve the lesser sentence. Absent a clear expression of legislative intent, we decline to interpret the statute as requiring such an anomalous result.” (Id. at pp. 1057–1058.)

In the more than 20 years that the George case has been on the books, it has not been overruled by the Supreme Court, rejected by another appellate panel, or superseded by legislative amendment or clarification of the death penalty statutes. In that time, the principle of prosecutorial discretion to seek or not seek the death penalty in eligible cases has repeatedly been upheld. (See People v. Lucas (1995) 12 Cal.4th 415, 477; People v. Keenan (1988) 46 Cal.3d 478, 505.) In our view, George correctly states current law and would bar defendants’ claim even if it had not been waived.

2. Sufficiency of the Evidence

In order to find the special circumstance true as to Anthony, the jury was required to determine that Anthony aided and abetted the attempted robbery “with reckless indifference to human life and as a major participant.” (§ 190.2, subd. (d).) Under the case law, the phrase “reckless indifference to human life” has been construed to mean that “a defendant subjectively appreciated that his or her conduct created a grave risk of death.” (People v. Estrada (1995) 11 Cal.4th 568, 581.) According to Anthony, the evidence in this case was insufficient to show that he subjectively appreciated that his conduct created a grave risk of death.

Anthony first points to evidence that he was: (1) only 18 years old at the time of the killing and was therefore less able to evaluate the consequences of his actions than a mature adult; and (2) under the influence of drugs and alcohol which impaired his ability to appreciate risks. He argues further that there was no substantial evidence that he considered the possibility of death as the robbery was planned, or knew that Brooks’s gun was loaded.

The People argue that evidence of the following facts, many of which were undisputed, was sufficient to support the jury’s special circumstance finding against Anthony: (1) the three defendants were friends; (2) Anthony told the police that a week before the Oakland robbery attempt, both he and Brooks had possession of the gun used to shoot Miller; (3) Derek called the gun a “turf gun”—a gun available to all three of them; (4) the gun Anthony used in the San Leandro robbery looked like the one Brooks used to shoot Miller, and all three defendants told the police it was the same gun; (5) Anthony and his codefendants entered the Oakland 7-Eleven with the intent to rob the cashier; (6) Anthony knew that Brooks was armed with a gun; (7) defendants knew there was a big guard in the Oakland 7-Eleven who was armed with a gun;¹⁹ (8) Brooks told the police that he was supposed to hold his gun on the guard and make sure the guard did not draw his gun; (9) the gun Brooks used was loaded; (10) Brooks pointed the gun at Miller and ordered him to surrender his gun; (11) after Miller refused to give up his gun and struggled with Brooks to try to take away Brooks’s gun, Anthony joined the struggle and tried unsuccessfully to disarm Miller; (12) after Brooks shot Miller, Anthony and the other defendants ran away, leaving Miller to die.

19 The autopsy evidence showed that Miller was six feet five inches tall and weighed 319 pounds. Anthony told police he had been to the store before, had seen Miller, and knew that Miller was “bulky” and armed with a gun.

According to the People, these facts were sufficient for the jury to infer that Anthony knew whether the gun was loaded when he used it the night before the shooting of Miller. Based on the facts that the robberies were similar, the gun was in fact loaded in the second robbery, the second robbery occurred only one day after the first, and there was no evidence of anyone loading the gun between the two robberies, the People argue that the jury could reasonably have concluded that: (1) the gun was loaded when Anthony used it in the first robbery, (2) Anthony knew it was loaded when he used it, and (3) he therefore knew it was loaded when defendants planned and carried out the Oakland robbery attempt.

We agree with the People that the evidence was sufficient here to infer that Anthony knew the gun Brooks was carrying was loaded when he entered the Oakland 7-Eleven. If so, then Anthony knowingly became a major participant in a plan to use a loaded weapon to force a security guard carrying a loaded weapon to submit to a robbery. Unless his thought processes were severely stunted or impaired, this necessarily involved a subjective awareness on Anthony’s part of a grave risk of death. Further, when Brooks was holding a gun on Miller and it became evident that Miller would not submit, the likelihood that Brooks would fire his gun increased. Anthony further increased that risk by intervening and trying to take Miller’s gun away rather than abandoning the robbery and trying to get Brooks out of the store. Finally, when Miller was shot and mortally wounded, rather than come to his aid, Anthony assisted the shooter in getting away. At all of these junctures, Anthony’s actions showed a reckless indifference to human life.

Regarding his age and asserted immaturity, Anthony presented no evidence that he was unusually immature for his age and cites no case holding that an 18-year-old cannot have the requisite foresight to support a special circumstance finding. Such findings have been upheld against defendants of similar age. (See Tison v. Arizona (1987) 481 U.S. 137 [19 and 20 years old]; People v. Bustos (1994) 23 Cal.App.4th 1747 [16 and 17 years old]; People v. Hodgson (2003) 111 Cal.App.4th 566 [16 years old].) Anthony’s age does not as a matter of fact, law, or logic establish that he was unable to appreciate the grave risk of death involved in confronting an armed security guard with a weapon.

It is true that Anthony told the police he had been smoking marijuana and drinking Hennessy and gin all day on the day of the homicide, and that the prosecution did not offer contrary evidence or argument. The fact that the prosecution did not choose to contest Anthony’s statements does not mean that it stipulated to their truth. The jury was not required to accept them at face value nor was it compelled to infer from the evidence that Anthony must have been so intoxicated that he could not have appreciated the risk of death created by his conduct. His statements about drug and alcohol consumption were not corroborated by any other evidence and could have been merely self-serving exaggerations. No drug or medical expert testified that the quantities of intoxicants Anthony consumed would have prevented him from appreciating the risk of death involved in the armed robbery of a guarded store.

Based on the entire record, and notwithstanding the evidence of Anthony’s age and level of alcohol and drug consumption, a rational trier of fact could have found the special circumstance true.

Anthony contends that the reckless indifference finding made by the jury conflicts with prior case precedents. However, he cites only a single, out-of-state case with comparable facts in which the evidence was deemed to be insufficient to support a finding of reckless indifference to human life. In Jackson v. State (Fla. 1991) 575 So.2d 181 (Jackson), the Florida Supreme Court overturned the death penalty conviction of a defendant who participated in a hardware store robbery that resulted in the shooting death of the store owner. (Id. at p. 184.) The court stated in part: “There was no evidence that Jackson carried a weapon or intended to harm anybody when he walked into the store, or that he expected violence to erupt during the robbery. There was no real opportunity for Jackson to prevent the murder, since the crime took only seconds to occur, and the sudden, single gunshot was a reflexive reaction to the victim’s resistance. No other innocent lives were jeopardized. [¶] . . . To give Jackson the death penalty for felony murder on these facts would qualify every defendant convicted of felony murder for the ultimate penalty.” (Id. at p. 193.)

Jackson is distinguishable in our view. Here, the defendants entered the store knowing that it was protected by an armed security guard who would have to be subdued at gun point. The danger the defendants knowingly created by their actions was greater than in Jackson, and more than one innocent life was placed at risk. Further, Anthony was no mere passive bystander in this case. He actively intervened in the armed confrontation that led to Miller’s shooting. (See also People v. Proby (1998) 60 Cal.App.4th 922, 930 [declining to follow Jackson].) We do not find these facts out of line with other California cases in which reckless indifference findings have been upheld against substantial evidence challenges. (See People v. Hodgson, supra, 111 Cal.App.4th at pp. 579–580; People v. Smith (2006) 135 Cal.App.4th 914, 926–928; People v. Proby, at pp. 928–931.)

The special circumstance finding against Anthony was supported by substantial evidence.

3. Ineffective Assistance in Closing Argument

Anthony contends that his trial counsel rendered ineffective assistance of counsel by presenting a wholly inadequate argument on the issue of reckless indifference. Counsel’s argument on this issue covered one page of the trial transcript, compared to 34 pages for his entire closing. Trial counsel did not mention Anthony’s age, the evidence that he was intoxicated, the evidence concerning whether he knew Brooks’s gun was loaded, or Anthony’s actions inside the store. Instead, counsel characterized the factual scenario of this case as a $100 “snatch and grab” robbery and contrasted that to cases where someone provides guns to a known killer so he can execute a violent escape attempt from prison. Trial counsel pointed out that you can foresee people are going to die in the latter scenario, but there was no evidence that Anthony could have foreseen any such grave risk of death in the “snatch and grab” robbery involved here. Counsel followed this with a much longer disquisition, covering more than six pages of the transcript, on the history of juries and the Declaration of Independence. When he returned to the facts of the case, Anthony’s counsel reminded the jurors of the factual issues they must decide, but he failed to include in that list the issue of whether Anthony was subjectively aware of the grave risk of death.

To demonstrate ineffective assistance of counsel in this case, Anthony must show that: (1) his counsel’s closing argument on the special circumstance issue was deficient under prevailing professional norms; and (2) but for counsel’s failings, it is reasonably probable that the result of the proceeding would have been more favorable to him. (See Strickland v. Washington (1984) 466 U.S. 668, 687–688, 694; People v. Seaton (2001) 26 Cal.4th 598, 666.) We begin our review with a strong presumption that counsel’s performance reflected a defensible trial strategy: “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] . . . [A] court must indulge [therefore] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Strickland v. Washington, at p. 689.)

In this case counsel may well have believed that arguing the special circumstance evidence at length would not have been the best trial strategy for a number of reasons. First, such a strategy would have undermined Anthony’s first line of defense that he and his codefendants were not attempting to rob the store. On appeal, Anthony claims that his counsel should have refuted the prosecutor’s assertion that he knew the gun was loaded. But focusing the jury on that issue raises the question of how Anthony even knew Brooks had a weapon on him, loaded or unloaded, if this was a shopping trip rather than an attempted robbery. He also claims defense counsel should have made an argument that he and his codefendants did not expect the guard to resist. This too would have risked cementing or appearing to concede the evidence that this was a planned robbery. We note that Derek’s counsel—with a stronger argument to make on the special circumstance issue than Anthony’s—barely addressed the issue in her closing argument.²⁰ Even with the benefit of hindsight, it is hard to fault the strategy of treading lightly on the evidence concerning the special circumstance allegation, even if it did not work in Anthony’s case.²¹

20 Derek’s counsel essentially argued that there was no knowledge of a grave risk to human life because there was no robbery. Her sole argument on the special circumstance issue was as follows: “The District Attorney mentioned regarding the special circumstances that [Derek] and [Anthony] both acted with reckless indifference to human life and knew that what they were doing on October 31st, 2001, involved a grave risk to human life. [¶] I submit to you if they are not there to do a robbery[,] [t]hey don’t know there is any risk or any harm to human life.”

21 The strategy may have come close to succeeding. As Anthony himself points out, the jury wrestled with the question of whether there was an attempted robbery and at one point sent a note to the judge that it was deadlocked on the issue.

Second, Anthony’s counsel may have reasonably believed that rather than get bogged down in the evidence about where the gun came from, and why Anthony joined in the struggle with Miller, the special circumstance argument was strengthened by leaving the jury with one vivid point succinctly stated—comparing a “snatch and grab” robbery to a more egregious case in which the likelihood of someone being killed was much greater.

Finally, counsel may have reasonably believed that staking out the strongest possible position on the attempted robbery issue, as Derek’s counsel did, might induce the jurors to “split the difference” by finding the special circumstance allegation false even if they felt constrained by the evidence to return a guilty verdict on first degree murder.

We reject Anthony’s ineffective assistance claim based on his counsel’s closing argument because he fails to overcome the presumption that counsel’s argument reflected a reasonable tactical choice. (See People v. Freeman (1994) 8 Cal.4th 450, 498 [decision as to how to argue to the jury is inherently tactical].)

4. Instructions and Verdict Form

Anthony and Brooks claim that the trial court committed four instructional errors pertaining to the special circumstance issue. First, the court failed to give CALJIC No. 8.83.1 despite the prosecution’s and defense’s requests that it be given.²² Second, the court omitted a critical portion of CALJIC No. 4.21 pertaining to the mental state required for a special circumstance finding.²³ Third, the court unnecessarily instructed the jury under paragraph No. 2 of CALJIC No. 8.81.17 concerning an issue that was assertedly uncontested by the defense—whether the murder was committed to further the robbery attempt or escape.²⁴ Fourth, the court incorporated the uncontested issue in the verdict form while omitting from it an essential issue that was contested—whether defendants appreciated that their acts involved a grave risk of death.²⁵

22 CALJIC No. 8.83.1 provides: “The [specific intent] [mental state] with which an act is done may be shown by the circumstances surrounding its commission. But you may not find a special circumstance alleged in this case to be true unless the proved surrounding circumstances are not only, (1) consistent with the theory that the defendant had the required [specific intent] [mental state], but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to [any] [specific intent] [mental state] is susceptible of two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to the absence of the [specific intent] [or] [mental state], you must adopt that interpretation which points to the absence of the [specific intent] [or] [mental state]. [¶] If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

23 The jury was instructed as follows under CALJIC No. 4.21: “In the crime of murder based on the unlawful killing of a human being during the commission or attempted commission of the crime of robbery, murder based on the unlawful killing of a human being with malice aforethought, or in your determination as to whether the evidence is sufficient to prove the existence of premeditation and deliberation, a necessary element is the existence in the mind of the defendant of the specific intent or mental state. The necessary specific intent or mental state required is set forth elsewhere in these instructions. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required specific intent or mental state. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that specific intent or mental state, you must find that he did not have such specific intent or mental state.”

24 The instruction given stated in pertinent part as follows: “To find that the special circumstance referred to in these instructions . . . is true, it must be proved [that]: [¶] 1a. The murder was committed while a defendant was engaged in the commission or attempted commission of a robbery; and [¶] 2. The murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance . . . is not established if the attempted robbery was merely incidental to the commission of the murder.”

25 The verdict form read as follows: “We, the jury, further find true/not true that the murder of James Milton Miller was committed while said defendant _______ was engaged in the commission or attempted commission of the Crime of Robbery in violation of Penal Code Section 211 and, the murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or avoid detection.”

Regarding the failure to give CALJIC No. 8.83.1, the trial court did give a very similar instruction, CALJIC No. 8.83.²⁶ Defendants claim that the latter instruction was inadequate because it does not focus specifically on the use of circumstantial evidence to prove the mental state element of the special circumstance. Instead, it instructs the jury generally on the use of circumstantial evidence to prove a special circumstance. We do not find this distinction material because there is no reasonable likelihood that the jury believed CALJIC No. 8.83 applied to circumstantial evidence of the special circumstance allegation but not to circumstantial evidence of the mental state required for the allegation to be found true. Certainly, the instruction given gave defense counsel every opportunity to emphasize in argument, had they chosen to do so, that the instruction applied to circumstantial evidence of the required mental state.

26 CALJIC No. 8.83 as given read as follows: “You are not permitted to find a special circumstance alleged in this case to be true based on circumstantial evidence unless the proved circumstance is not only (1) consistent with the theory that a special circumstance is true, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the truth of a special circumstance must be proved beyond a reasonable doubt. [¶] In other words, before an inference essential to establish a special circumstance may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which that inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the truth of a special circumstance and the other to its untruth, you must adopt the interpretation which points to its untruth, and reject the interpretation which points to its truth. [¶] If, on the other hand, one interpretation of that evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

We note that the court also gave CALJIC No. 2.02²⁷ as well as CALJIC No. 3.31 (concurrence of act and specific intent). Although CALJIC No. 2.02 at one point references the “crime charged,” its language otherwise tracks CALJIC No. 8.83.1. The combination of CALJIC Nos. 2.02 and 3.31 with CALJIC No. 8.83 has been upheld by our Supreme Court against a claim that the trial court had a sua sponte duty to give CALJIC No. 8.83.1. (People v. Lewis (2001) 25 Cal.4th 610, 653.) The Supreme Court also found that “[t]he absence of a duplicative instruction specifically linking the use of circumstantial evidence of specific intent to the determination of the truth of the special circumstance allegations” was not prejudicial. (Id. at p. 654.) We find no error or prejudice here in the use of CALJIC No. 8.83 in lieu of CALJIC No. 8.83.1.

27 The first paragraph of CALJIC No. 2.02 as given read in pertinent part as follows: “The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find any defendant guilty of the crime charged by the Information . . . unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent or mental state but (2) cannot be reconciled with any other rational conclusion.” (Italics added.) The second paragraph of the instruction is in substance identical to the second and third paragraphs of CALJIC No. 8.83.1.

Anthony contends that CALJIC No. 4.21 as given was inadequate because it omitted to mention the special circumstance mental element. He notes that the first sentence of the standard version of CALJIC No. 4.21 allows for specific mention of the mental state required for a special circumstance to be true: “In the crime[s] of ________, [________,] [and ________,] of which the defendant is accused in Count[s] ________, [or that of ________, which [is a] [are] lesser crime[s] thereto,] [or in the allegation that ________] a necessary element is the existence in the mind of the defendant of the [specific intent to ________] [mental state[s] of ________].” (Italics added.) He further contends that defense counsel’s request at trial for “all of the standard CALJIC instructions for involuntary [sic] intoxication” must be “understood to include intoxication instructions pertaining to all of the mental elements alleged.” Alternatively, if we determine that the instruction was not sufficiently specified by the defense’s request, Anthony argues that his trial counsel’s failure to do so constitutes ineffective assistance of counsel.

In our view, there is no reasonable likelihood that the jury was misled by the version of CALJIC No. 4.21 given. The instruction did not state or imply that jurors should not consider evidence of the effect of intoxication on the existence of the mental state required for a special circumstance finding. In fact, neither Brooks’s nor Anthony’s counsel deemed the issue important enough to argue to the jury.²⁸ Defendants make no claim that the instruction in any way prevented or dissuaded them from doing so. In our view, neither the instruction given nor the choice of counsel not to argue the issue of voluntary intoxication were prejudicial to defendants. While it is easy to claim after an adverse verdict that a different jury argument or a more specific instruction might have changed the result, we have been given no reason to believe that the voluntary intoxication issue raised here would have done so.

28 Brooks’s counsel did argue that his client’s intoxication negated malice, intent to rob, and premeditation. But when it came to the issue of the special circumstance, he confined himself to the claim that the shooting was not in furtherance of the attempted robbery or to facilitate escape, but was either an accident or a rash, impulsive action that was independent of the attempted robbery. Anthony’s counsel did not mention intoxication in connection with the mental state required for either attempted robbery or the special circumstance allegation.

Regarding the “unnecessary” language in paragraph No. 2 of CALJIC No. 8.81.17, it is incorrect to claim that the defense made no argument that the underlying felony was merely incidental to the commission of the murder. Defendant Brooks did in fact make that very argument. In any event, unless defendants had stipulated in advance to limit the arguments they would make, the instruction was not superfluous.

Further, the verdict form was not required to include each and every element of the special circumstance alleged. The jury was instructed that in order to find the special circumstance true it must find beyond a reasonable doubt that defendants knew or were aware that their acts involved a grave risk of death to an innocent human being. Not only must we presume that the jurors followed that instruction (People v. Sanchez (2001) 26 Cal.4th 834, 852), the record shows affirmatively that they did in fact follow it: The jury at one point specifically asked for clarification of the “grave risk of death” language in the instruction. The verdict form was not erroneous or misleading.

5. Cruel and Unusual Punishment

Anthony and Brooks argue that their LWOP sentences are so disproportionate to their individual culpabilities as to violate the federal and state constitutional proscriptions against cruel and unusual punishment. Anthony concedes that LWOP sentences for the nonkillers in certain felony-murder cases have been held to be constitutional. (See Tison v. Arizona, supra, 481 U.S. at pp. 152–158 [death penalty not cruel and unusual in such cases]; People v. Estrada, supra, 11 Cal.4th at pp. 580–581 [statute providing for these penalties not so vague as to violate state and federal proscriptions against cruel and/or unusual punishment].)

We do not find the facts here comparable to those in People v. Dillon (1983) 34 Cal.3d 441 (Dillon), on which defendants rely. Our Supreme Court held in Dillon that the application of the first degree felony-murder rule may in some cases violate the state prohibition against cruel or unusual punishments. (Id. at p. 477.) The defendant in the case was a 17-year-old high school student. He and a group of friends worked out a plan to steal marijuana from two brothers who were growing it on a nearby farm. (Id. at pp. 451–452.) Previous attempts to steal from the farm had been rebuffed and one of the brothers had threatened the boys that they would be shot if they tried again. (Id. at p. 451.) When the boys did try again, they armed themselves and brought material for possibly binding up the guards. (Ibid.) During the attempt, one of the group twice accidentally discharged his shotgun. (Id. at p. 452.) Shortly after that, the defendant saw one of the brothers emerging unexpectedly from the bushes behind them, carrying a shotgun. (Ibid.) As he drew near, the defendant shot at him nine times, causing fatal wounds. (Id. at p. 452.) The defendant testified, credibly, that he believed the shotgun blasts he heard had been fired at his friends and that he began firing repeatedly at the man approaching him because he panicked and was afraid of being shot. (Id. at pp. 482–483.) A clinical psychologist testified that the defendant was unusually immature. (Id. at p. 483.) The defendant had no previous criminal record, and the trial court had found that he was not a dangerous person. (Id. at pp. 486, 488.) The Supreme Court held that the punishment of the defendant as a first degree murderer, under the circumstances of the case, violated the state Constitution. (Id. at p. 489.)

Brooks was 21 years old at the time of the shooting in this case and Anthony was 18. There is no evidence that either defendant was immature for his age. There is also no evidence that Brooks shot Miller in self-defense, or that Anthony was trying to get Miller’s gun out of fear that Miller was about to shoot them. There was in fact no evidence or claim that Miller was trying to or ever did get his gun out of his holster. As to Brooks, the evidence shows that he stepped back, pointed his gun at the center of Miller’s chest from a short distance away, and fired. The level of individual culpability and responsibility involved in this case is significantly greater than that described in Dillon.

Moreover, the underlying crime of attempted robbery here was not some wholly aberrational event in the lives of these defendants. The Oakland 7-Eleven robbery attempt was the last in a string of at least five armed robberies they had committed.²⁹ The day before the shooting, Anthony played the lead role in an armed robbery in which he placed a gun at the cashier’s head and pushed her to the ground. Anthony admitted that he had a record of juvenile crimes including theft, burglary, attempted burglary, and robbery, as well as a commitment to the California Youth Authority. Although Brooks had no prior criminal record, he admitted his involvement in prior armed robberies and was the one who shot and killed Miller. Although there are indications in the life histories of both defendants that they had the potential to lead a different kind of life, their predilection for threatening and using violence was such that both men would still have to be classified as being highly dangerous to society.

29 In connection with a pretrial motion in limine, the prosecutor presented evidence of defendants’ involvement in four armed robberies that occurred between October 24 and October 30, 2001, including the San Leandro 7-Eleven robbery. Witnesses in all four robberies described the perpetrators as three African-American males and supplied physical descriptions consistent with those of the defendants. Derek and Anthony admitted that they participated in at least one of two armed robberies of the same Quick Stop store that occurred on October 24 and October 29. Derek admitted that he participated in the October 24 robbery of a Round Table Pizza restaurant, and all three defendants admitted their involvement in the fourth robbery—the October 30 San Leandro robbery.

We do not find the LWOP sentences received by either defendant so disproportionate to their personal culpabilities in the death of James Miller as to violate the state or federal constitutional proscriptions against cruel or unusual punishment. We also reject Brooks’s and Anthony’s claims that their trial attorneys provided ineffective assistance by failing to raise the constitutional issue in the trial court, or to submit any supportive evidence or argument to the probation department or trial court. For the reasons discussed, there is no reasonable possibility that defendants’ LWOP sentences would have been reduced if the issue had been pursued in the trial court.

D. Other Issues

Defendants raise two issues arising from statements given by two confidential informants at pretrial, in camera proceedings. First, defendants Brooks and Anthony argue that they were prejudiced by the prosecution’s asserted violation of its duty to provide discovery of the testimony given by Dwayne Chandler to the magistrate on November 13, 2001, before the magistrate signed defendants’ arrest warrants. Second, all three defendants ask this court to review the sealed transcript of an in camera hearing at which Sergeant Longmire was questioned about a second confidential informant who had assisted him at an early stage of his investigation. Specifically, defendants request that we independently review the issue of whether that informant provided any material evidence favorable to the defense, or that we remand the case to the trial court to conduct an in camera hearing with the second informant.

1. Proceedings Before the Magistrate

As an initial matter, we find that defendants waived their present claim of a prosecutorial discovery violation by failing to timely raise the issue in the trial court.

The fact that the magistrate had interviewed Chandler was recorded in a log entry made by Sergeant Longmire in a follow-up investigation report, referring to Chandler as “X.”³⁰ That four-page report was attached as an exhibit to a motion filed by Anthony’s counsel in June 2002 to force the disclosure of Chandler’s identity. Chandler’s name was disclosed to the defense by the end of April 2003. In December 2004, Brooks’s counsel filed a motion seeking sanctions against the prosecution for providing late discovery of certain additional documents concerning Longmire’s contacts with Chandler. Longmire’s follow-up investigation report was not a subject of the motion, nor did the motion refer to or seek a transcript of Chandler’s in camera hearing before the magistrate.

30 The November 12, 2001 log entry stated: “I presented a Ramey Warrant to the Honorable Judge Steven Brick. Judge Brick instructed me to return at 1500 for an En camera [sic] hearing with ‘X.’ ”

On December 2, 2004, Brooks’s counsel used the follow-up report to cross-examine Longmire in a pretrial hearing. At the hearing on the defense sanctions motion, Brooks’s counsel referred specifically to the fact that “the magistrate who signed the Ramey warrant did so only after an in-camera hearing with the person we have noted to be Mr. Chandler.” As discussed earlier, Longmire also testified at trial about the fact that the magistrate wanted to hear testimony from Chandler before approving the arrest warrants and that he felt reassured by the judge’s questioning of Chandler. There is no evidence in the record that the defense, after learning that the magistrate interviewed Chandler, took any steps to obtain a transcript of the in camera hearing.³¹ Equally, there is no evidence that the defense made an objection in the trial court that it did not receive the transcript of the hearing in discovery, even when Longmire was testifying about what transpired in it. Under the circumstances, defendants have waived their present claim of a discovery violation.

31 While this appeal was pending, Anthony moved to receive a copy of the sealed transcript of Judge Brick’s interview with Chandler, which this court granted. The moving papers do not address any efforts to obtain the transcript while the matter was still pending in the trial court.

Having reviewed the transcript, we also do not believe that having it in hand before or during trial would have materially assisted the defense or affected the trial’s outcome. Defendants point out that Chandler told the magistrate he was a close family friend to James Miller, knew his whole family, and wanted the family to know who had done it. Defendants claim that Chandler’s closeness to Miller’s family, a matter not otherwise disclosed in discovery, shows Chandler’s “bias” against them. However, we fail to see how this fact, assuming it is true, would have given Chandler a motive to falsely implicate defendants in Miller’s death. Chandler also told the magistrate that he was very close to Anthony and to Derek, which would have given him a bias in favor of defendants. The impeachment evidence defendants used against Chandler—that he provided incriminating information against defendants in order to get out of a criminal charge and get back out on the streets to buy drugs—was much stronger than any ammunition they would have gotten from the in camera hearing transcript.

Chandler told the magistrate that Brooks told him the security guard and the cashier “kind of” resisted so he shot the guard on the way out. Defendants argue that this was exculpatory because, since there was no evidence that the cashier resisted, Chandler’s statement suggests that he never actually spoke to Brooks but was repeating neighborhood gossip. This is unconvincing. Such a trivial discrepancy could easily be explained by Brooks either failing to notice or recall how the cashier acted, Brooks misreporting the events to Chandler, or Chandler incorrectly recounting what Brooks had said to him. Chandler’s responses to the magistrate and his statements to police match up quite closely overall.

Sergeant Longmire testified at trial that Chandler told him during an unrecorded interview that defendants had gone into the store to rob it. Defendants claim that the sealed transcript undercut this testimony since Chandler did not mention anything along these lines to the magistrate. Again, the inference here is exceedingly weak. The magistrate did not examine Chandler exhaustively on what Anthony may have said to him. Chandler’s failure to mention a point at the hearing is not highly probative as to what Chandler told Longmire. In any event, Anthony had other, stronger evidence with which to impeach Longmire’s testimony on this point, including the fact that his interview notes of Chandler contained no reference to such an admission by Anthony.

Finally, defendants claim the hearing transcript shows that Longmire exaggerated when he testified that the judge had “explored quite heavily” Chandler’s prior criminality and had “tested” Chandler’s information. In our view, any exaggeration on Longmire’s part was very slight. The magistrate thoroughly questioned Chandler and we do not believe that having the transcript to show to the jury would have undercut Longmire’s testimony in any material fashion.

2. The Second Informant

In November 2002, Anthony’s counsel filed a motion for an order compelling the disclosure of the identities of informants relied upon by the police in their investigation. The accompanying declaration of counsel specified that there appeared to be two confidential informants mentioned in Sergeant Longmire’s follow-up investigation report. One of the informants, referred to as “X” in Longmire’s report, was later identified as Chandler. Longmire wrote the following about an apparent second informant to whom he did not give a letter designation: “The informant told me that the suspects are from the 55th Avenue area. The informant was only able to provide me with the initials of ‘D’ & ‘G.’ The informant said the suspects were arguing over who shot Miller. The informant also said the suspects share the 9mm pistol that was used to kill Miller.” Derek joined in Anthony’s motion, arguing that the informants could possibly provide evidence that Derek did not know either of his codefendants had a gun. In February 2003, Deputy District Attorney Daniel Burke filed the prosecution’s opposition, which referred only to informant “X.” Burke argued that there was no reasonable possibility that the informant could exonerate any defendant.

At the initial hearing on the motion in February 2003, the court and defense counsel expressed doubt as to whether there were in fact one or two informants. The court announced its intention to order disclosure of the informant “who overheard conversations amongst the defendants or between defendants about their roles in the crime.” Burke immediately requested an in camera hearing, and the court granted the request. In April 2003, the court held another hearing on the motion to disclose, following an in camera hearing. The prosecutor informed the court that he had provided the name of Dwayne Chandler to the defense and that Chandler was the only informant he was aware of.

Nearly two years later, during the cross-examination of Sergeant Longmire, the defense learned that there was in fact a second confidential informant, whom Longmire had interviewed on the day before he interviewed Chandler. The defense immediately filed a motion seeking alternatively to dismiss the charges, to grant a new trial, or to order disclosure of the confidential informant and grant a continuance, contending that the undisclosed informant could have provided exculpatory evidence for one or more of the defendants. At a hearing on the defense motion, the court decided that it needed time to look into the matter, but declined to interrupt the trial for that purpose. Later that day, the court instructed the jury and counsel began presenting arguments to the jury.

After the jury returned its verdicts, the trial court held an in camera hearing with Sergeant Longmire in order to determine—for purposes of the pending defense motion— whether the second informant might possibly provide exculpatory evidence. The court concluded that the informant could not provide such evidence, and denied the defense motion.

All defendants have joined in requesting this court to review the sealed transcript of the in camera hearing and to independently determine whether the confidential informant could possibly provide material evidence favorable to one or more of the defendants. We have done so and find nothing in the transcript of the in camera hearing to indicate that the informant might be able to provide exculpatory evidence as to any of the defendants. Equally, we are unable to discern any possible motivation that the prosecution would have had to knowingly conceal the existence of the second informant from the defense.

Anthony asks this court to remand the matter to the trial court to conduct an in camera hearing with the informant. He argues that this remedy is appropriate because the prosecution showed bad faith in misleading the defense into believing that Chandler was the sole informant, and because Longmire had no incentive to elicit exculpatory information from the informant and therefore was not the appropriate person to examine on the issue of whether defense access to the informant would have yielded such information. We decline to order a remand for this purpose. There is no convincing evidence in the record that the prosecution knew of the existence of the second informant and withheld that information from the defense. Further, given the limited nature of and foundation for the informant’s information, and the very early stage of the investigation at which it was furnished, there is no reason to believe that Longmire’s interview of the informant was inadequate to elicit any exculpatory information he might have possessed.

For all of the reasons stated, defendants’ trial was fair, and their sentences were lawful.

IV. DISPOSITION

The judgments appealed from are affirmed.

We concur: Stein, Acting P.J., Swager, J.