People v. Bell

Full title: THE PEOPLE, Plaintiff and Respondent, v. TERRY LEE BELL et al., Defendants…

Court: Court of Appeal of California

Date published: Jun 8, 2007

No. E038574 (Cal. Ct. App. Jun. 8, 2007)

Opinion

E038574

6-8-2007

THE PEOPLE, Plaintiff and Respondent, v. TERRY LEE BELL et al., Defendants and Appellants.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Terry Lee Bell. Bensinger, Ritt & Tai and Kerry R. Bensinger for Defendant and Appellant Natalie Le DeMola. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Michael Long. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED

Richli

Defendant Natalie DeMola conspired with her boyfriend, defendant Terry Bell, and with their mutual acquaintance, defendant Christopher Long, to kill DeMolas mother by beating her to death. After the commission of the crime, however, as DeMola was driving away, she got into an accident. She left the accident scene (evidently so she could drop off her coconspirators) but then came back and told the police that she had caused the accident because her house was being robbed. Police went to her house, where they found the victim on the floor, unconscious in a pool of blood, with a broken nose, a broken jaw, broken ribs, and a skull fracture that ultimately proved fatal.

A jury found DeMola and Bell guilty of first degree murder. (Pen. Code, §§ 187, subd. (a), 189.) It also found true both a lying-in-wait special circumstance and a torture-murder special circumstance. (Pen. Code, § 190.2, subd. (a)(15), (18).) However, it found an alleged financial-gain special circumstance not true. (Pen. Code, § 190.2, subd. (a)(1).) A separate jury found Long guilty of first degree murder but rejected all three alleged special circumstances. DeMola and Bell were sentenced to life without parole. Long was sentenced to 25 years to life.

The appellate issues raised are many, but they can be grouped into several broad categories. A number of them involve the fact that — at least according to DeMola — this case was initially filed in juvenile court. Others involve the admission of hearsay statements by Bell and by Long, not only against them, but also against their codefendants. Several others involve asserted jury misconduct. In addition, there are assorted evidentiary, instructional, and sentencing issues.

As the People concede, the trial court erred by imposing a parole revocation restitution fine (Pen. Code, § 1202.45) on DeMola and Bell. We will modify the judgments against them accordingly. Otherwise, we find no prejudicial error. Hence, we will affirm the judgments as modified.

I

FACTUAL BACKGROUND

A. DeMolas Relationship with Her Mother.

DeMola lived with her parents in Corona. She went to Centennial High School, where she was on the swim team. In late 2000, DeMola began dating Bell. Around the same time, one of DeMolas friends began dating Long. DeMolas mother (the victim) did not want DeMola to date. She and DeMola had frequent arguments about the relationship. DeMola once told a friend that she "hated" her mother.

In February or March 2001, the victim ran into DeMola with Bell (and with Long) at a Carls Jr. The victim yelled at DeMola, then took her home. Afterwards, Bell and Long joked about "torturing" the victim. They discussed starving her, spanking her, pulling her hair, and cutting her and putting lemon juice on the cuts.

B. Emails and Instant Messages.

DeMola sent or received the following emails and instant messages:¹

1 We have kept the original execrable spelling, punctuation, and capitalization, except as absolutely necessary for comprehensibility. All changes have been indicated, as usual, by brackets and ellipses, except that some random gibberish (an artifact of the retrieval of the messages) has been deleted.

January 8, 2001, from Bell to DeMola: " . . . I dont know how to get into the conversation with my mom . . . im gone tell her that Im not going to Winter Formal . . . cuz youre not going, cuz youre mom doesnt want you to see me n-e-more, cuz she doesnt allow you to have a boyfriend, and shes been hearing that youre my girlfriend, and you are, but you never told her . . . . im going to tell her your mom doesnt want you seeing, or talkn to me, and that she said if i try to, then shes going to put out an order on me."

January 9, 2001, from DeMola to Bell: "i cannot call u n-e more. my mom said that she can tell all of the numbers i call. so if you want [to] talk to me, you have to call me. she is letting me go with u 2 winter formal, but that is it. i cant go n-e-where with you other than that. . . . she doesnt want me and you together all the time. everything that s[h]e is doing to hurt me will all come back on her."

January 10, 2001, from Bell to DeMola: "dont feel bad, cuz we are gone always be together, no matter what. I know, that might seem hard, cuz of your mom, I use to like your mom, that was when she liked me, but now, I dont care what your mom sais, cuz Im still gone be with you."

Unknown date, between DeMola and Bell:

"[Bell:] i thought [your mom] was nice at first[,] but she threatened me[,] hits you[,] put[]n you down[,] as if she don[]t care about you[,] and then getdislike every[,] and n-e-body that tries to correct her[.]"

"[DeMola:] it[]s ok[.]"

"[Bell:] If you dont ever wanna see her again[,] just let me know[,] cuz you already know I[]ll do n-e-thing for you[.]"

"[Bell:] and I just want you to be happy[.]"

"[DeMola:] i don[]t need to be happy[,] life wasn[]t meant to be joyful[.]"

"[Bell:] yeah it was[,] . . . and I know that the only reason you[]re never happy[,] is cuz of her. [¶] . . . [¶] . . . i[]m not even gone do nuthin to her[,] unless you want me to[,] cuz God will take care of her. [¶] . . . [¶] I just hopes that she doesn[]t hurt or get n-e-body hurt b-4-she[]s taken care of[.]" (Capitalization altered.)

"[DeMola:] the only person that she will hurt before she is taken care of is me cuz i []can[]t live like this[.]"

February 5, 2001, 8:33 p.m., from DeMola to Bell: "[M]y mom is yellin at me now[.]"

February 5, 2001, 10:34 p.m., from DeMola to Bell: "i said that the only person who will get hurt before she is taken care of is me because i cant live like this[.]"

February 6, 2001, 1:51 a.m., from Bell to DeMola: "You want get hurt, cuz I want let you."

February 6, 2001, 1:57 a.m., from Bell to DeMola: "youre not going to do n-e-thing, all u have to do is let me handle it, cuz right about now I really have no type of care, feelings for your mom whatsoever, and thats a shame, cuz i usually respect all adults whether they like me or not, but shes hurting you, so she should get handled ju[st li]ke i would handle n-e-body else that hurts, or tries to hurt you."

February 6, 2001, 2:20 a.m., from Bell to DeMola: "If n-e-thing was to happen to you, and then sumthin was to happen to me, and sumthin will happen, cuz of the way Ill be, . . . youll be in Heaven, But Ill pro[bably b]e in hell, cuz Murders dont get to go to Heaven. Even though I believe in God, and everthing, but for the shit that Im gone do, I prob. want be going to heaven. Ill probably be done broke 6[ ]or 7 out of the 10 Commandments."

February 6, 2001, 2:21 a.m., from Bell to DeMola: "Just like I said b-4, Love can make you do some crazy shit, cuz Love hurts."

February 18, 2001, from Bell to DeMola: " . . . Ill do n-e-thing for you, I mean anything all you have to do is let me know what it is, . . . from lien for you, to killn for you . [Y]our mom seriously haves problems, and I wouldn[t h]esitate to help her with her problems, cuz she seriously haves issues. You already know that Im down for whatever, and Ill do n-e-thing when it comes to you. Cuz I dont want n-e-body hurting you . . . . I think that youll be better off with just you and your Dad, you need to see if it is someway that you can make that happen . . . . But Im bout to call up Chris, cuz I might have something that I might have to do."

February 19, 2001, from DeMola to Bell: "it is really good to know that you will do anything for me. . . . we will do whatever it takes to be together. i just dont want you to get caught for anything. but if there is a way that you will not get caught, then I am thinking about it."

March 27, 2001, from DeMola to one Nick Neal:² "i really like you and everything else that goes along with you. but the only re[ason?] that I wouldn;t want to be in a relationship with you is because of you going to college real soon. then i wouldnt get to see you and i would spend all my time thinking about you because you couldnt be there with me."

2 This and other emails were sent to "damagikalone@aol.com." It was undisputed, however, that this was Nick Neal.

March 30, 2001, from DeMola to Nick Neal: "hi, the time is finally here. ive been waiting to see you all weekend and no[w] i[t] is here."

April 2, 2001, from DeMola to Nick Neal: "im glad that we are together now. even though we just met, i feel like i known you for a long time. . . . we need to pick out a song for us. . . . and i am the type of girl that doesnt like my boyfriend to hug other girls. . . . and if they come up to you, i really want you to tell them that you have a girlfriend. . . . terry called me last night and was going off about stuff. it was because when I picked up the phone . . . i asked who it was and he was like, what the hell do you mean who is this, do you have other guys callin you? . . . he didnt even make me mad[] cuz i was thinking about you the whole time and that i wouldnt have to deal wit him much longer and that i have something else so much better than him or anyone else."

April 7, 2001, from Bell to DeMola, entitled "This is what I sent . . .": "[`]fucc ya b[oy]f[riend], he cant do it like I can, promise.[] What kind of shit is that, first of all, u came off like a rapest, u 20 years old, my girl is only 16 . . . . u cant get females by talkn wit ya dicc, thats not the case wit u though, that one sentence u type came str8t from ya ass . . . . Sounds like a nigga like you aint got no life whatsoever . . . shouldnt you [b]e somewhere in college, or workn or sumthin . . . ." (Capitalization altered.)

C. The Car Accident.

As of April 10, 2001, DeMola was 16; Bell and Long were 17. On that day, at 1:00 or 1:30 p.m., Bell came to Longs house. He brought some walkie-talkies. Sometime between 2:30 and 4:30 p.m., both Bell and Long left.

Sometime after 6:00 p.m., three neighbors saw DeMola back a black Nissan Xterra out of the garage, turn it around, and back it in again. As she was closing the garage door, two of them waved at her; she waved back.

Around 6:45 p.m., DeMola was driving the Xterra away from her home. She had gone only a block or two when she ran a stop sign and was broadsided by a pickup truck. Tammy Godinez, who was riding in the pickup, saw two passengers in the Xterra, one in the front passenger seat and one in the rear; they were both African-American. Her husband Javier Godinez, who was driving the pickup, told police that he saw one passenger in the front seat of the Xterra. He described him as a male, "dark-complected" African-American.³ At trial, he thought he might also have seen a second passenger in a rear seat, though he was not sure.⁴

3 Seeing Bell and Long in court, he testified that they had lighter skin than the person he saw.

4 Anthony Stein, an expert on "human factors" and ergonomics, testified before DeMola and Bells jury, but not before Longs. He had experimentally recreated the relevant aspects of the accident scene. He believed that the lighting conditions, including the window tinting on the Xterra, had been too dark for the Godinezes to have been able to tell whether there was anyone in the back seat.

DeMola drove away from the scene of the accident but, just minutes later, she came back, without any passengers. Tammy Godinez asked, "Where are the people in your car?" DeMola replied, "I didnt have anybody else in the car." She also said, "My mother is being robbed." Tammy then asked, "[W]hy did you come back to us and not back to your mom?" DeMola said, "[I] didnt want to get in trouble for a hit and run." She seemed calm and matter-of-fact.

Officer Jeffrey Glenn was the first to respond to the scene of the accident. When he asked DeMola what had happened, she said, "[I] d[o]nt know." She then asked if her mother was okay. He asked her where her mother was. She said, "I dont know." She then said someone had broken into her house. As a result, he sent other officers to check the house.

Meanwhile, Officer Gary Butera arrived, and he, too, spoke to DeMola. She said again that no one else had been in her car. She said that she left the scene because she was scared. She also said that she ran the stop sign because there had been a robbery at her house. He asked if there was anybody at the house, and she said no.

Finally, Officer Bryan Wilson arrived and spoke to DeMola. She told him that she left the accident scene because she did not have insurance, but she came back because she did not want a hit and run on her record. She then added, "[A]nd my house was being robbed." She said that she was driving away because of the robbery. However, she also said that she was going to swim practice; because she was late, she had planned to call the police when she got there.

DeMola then told Officer Wilson that she had looked downstairs and seen "masked men running into the house through the front door." She ran downstairs, where she saw her mother lying on the floor; she got the car keys, then ran into the garage, got in the car, and drove away. She insisted that no one else had been in the car with her.

Finally, Officer Butera came over and joined the conversation. In "an accusatory fashion," he "challenge[d] [her] account of the events[.]" She then said, "Can I start my story over again?"

This time, DeMola said that, when she ran into the garage, two or three men were "waiting for her" there. They were wearing ski masks. They said, "Get in the car. Drive us away." They got in the back seat. After the accident, she dropped them off, then came back to the accident scene. DeMola explained that she had lied initially because she was scared and because "[t]hey" said "they would come back and get me."

D. The Crime Scene.

The officers who went to DeMolas house found the front door locked. There was no sign of forced entry.

The victim was lying on the floor, at a central point where the kitchen, a den area, the stairway to the second floor, and a hallway leading to the garage all came together. She was unconscious but still alive. There was "blood everywhere."

A kitchen stool had been knocked over, and a radio was on the floor. The victim had evidently tried to escape through the sliding glass door in the den; there were blood transfers, including a bloody handprint, near the door. The victim also had evidently tried to escape through the downstairs bathroom window — there were blood transfers on the window and the window frame, several slats of the blinds had been torn out and bloodied, and the window screen had been pushed out. Inside the screen, there were two bloody handprints.

In the hallway, just outside a closet, there was a broken standing lamp. It weighed 15 pounds, because the base was filled with concrete. The underside of the base was "almost completely covered with blood." There were blood transfers on the closet door and inside the closet. A bloody drag mark led from the closet to the body.

There were blood transfers on the banister. In the upstairs master bedroom, there were blood transfers on a gun box, on a jewelry box, and inside a nightstand drawer. A .22-caliber revolver that had been in the gun box was missing. Also missing was the victims purse, in which she usually carried $10,000 to $15,000 in cash. The last call that had been made from the phone in DeMolas bedroom was to Longs house.

Still more blood transfers were found on the door from the house to the garage, on a workbench in the garage, and on the door from the garage to the side yard. A .25-caliber semiautomatic pistol that had been kept in the garage was missing.

No fingerprints had been left in the blood. At some points, however, there was a pattern of some "coarse material" consistent with gloves. In addition, in the kitchen, there were three distinct sets of footprints (some in blood, and some in 7-Up that had spilled in the kitchen). One set had a pattern of stars, bars, and shields that matched the shoes DeMola had been wearing. The second set said "FILA" and had a waffle pattern. The third set had a wavy chevron pattern characteristic of Nike Cortez shoes.

Blood was found on two of the outside door handles of the Xterra — on the front and rear drivers side — and inside the rear passenger side door.

E. The Autopsy.

The victim never regained consciousness. She died about a week later in the hospital. She had been savagely beaten. There were bruises, cuts, and scrapes all over her face. There were also bruises and scrapes on both hands, both legs, her back, and her right hip. Some of these injuries featured a pattern consistent with brass knuckles.

"[M]ost" of the ribs on her right side were broken, plus four ribs on her left side. Her upper jaw was broken, and possibly also her lower jaw; several of her teeth were loose. Her nose was broken in multiple places. Her left eye socket may have been broken. One of her neck vertebrae was cracked; however, this injury would not have been life threatening.

The cause of death was brain damage resulting from a skull fracture behind the victims right ear. This fracture could have been caused by dropping the lamp base onto the back of her head. The fracture would have incapacitated her immediately.

F. The Dénouement.

Around 6:50 or 7:00 p.m., Bell and Long returned to Longs house. Longs brother, on the phone with his girlfriend, told her that they were "roughed up a little bit. Like [they] had been fighting." They were not wearing shoes; they explained that "they had gotten in a fight [when] someone wanted to jack them for their shoes."

DeMola later told a relative that the masked men were "definitely not African-American . . . ." She also said they used "a computerized voice disguise . . . ." She told a neighbor they got in through "[a] broken window." She told a classmate they had a gun; however, she specifically told her swim coach that they had no weapons.

A few weeks after the funeral, DeMola and Bell started seeing each other every day. By July 2001, they were engaged; Bell paid $1,700 cash to buy DeMola a diamond ring. She bought him a 1993 Honda Civic.

On August 28, 2001, the police stopped Bell while he was driving with several passengers. In his car, they found two pairs of brass knuckles.

On January 17, 2002, the police arrested Bell. In his apartment, they found the DeMolas.25-caliber semiautomatic pistol, $1,180 in cash, a mask, and a walkie-talkie. They did not find the DeMolas .22-caliber revolver, nor did they find any shoes matching any of the footprints.

G. Additional Evidence Against Long.

On January 16, 2002, Long was arrested. His statements to the police were introduced before his jury, but not before DeMola and Bells.

Long told police that, about two months before the crime, Bell had asked him "to help me get rid of Natalies mom." Long knew that what Bell meant was to kill her. Bell told him, "[S]hes getting in the way of me and Natalie . . . ." Long refused. He claimed he did not think Bell was serious. About a month later, DeMola, too, asked Long if he would help them kill her mother. She said, " . . . I dont like my mom and she always beats me . . . ." Long refused again.

On the day of the crime, Bell came over to Longs house and raised the subject of "getting rid of [the victim] . . . ." He asked Long to come with him. Long said, "[F]or what?" Bell replied, "[T]o watch my back. [J]ust in case her dad comes home or anything like that." He added that DeMola would "pay us to do it." Long told police, "I dont know why I went to go with him to do it . . . . I wasnt thinking straight . . . . [¶] . . . [¶] I just [got] caught up in it by peer pressure." However, he also admitted that "[he] went up there cause [he] w[as] gonna get paid."

When they were across the street from the victims house, Long had "a change of heart." He "looked at [Bell] and . . . asked him to think about what we were about to do before he did it." Meanwhile, DeMola called Bell on the walkie-talkie and told them to "hurry up." Bell and Long went up to the front door, where Bell put on a "Scream" mask and gloves. He gave Long a beanie, a bandanna, and gloves. Bell then opened the door with a key that DeMola had given him.

When the victim saw them, she started screaming, "Natalie[!]" Bell punched her in the face. She fell, hitting her head and cutting it open. Bell kicked her and said, "[W]heres the money?" She said, " . . . Ill go get you the money," and started to walk toward the back door, but Bell grabbed her by the hair and pulled her off her feet. He wrapped a rug around her, then started punching her. Meanwhile, he told Long to "push over stuff to make the house look like it was robbed." Long pushed over a radio and a bottle of water. Bell told Long to put the victim in the closet and hold the door closed. He complied. DeMola came into the room, then went upstairs with Bell. While they were gone, Long let the victim out of the closet. She sat on the floor, and he held her. However, he claimed, "I didnt hit her . . . once."

When Bell came back downstairs, the victim looked up and saw DeMola. Long supposedly said, "[L]ets get out of here . . . youve done enough," but DeMola — apparently because she had been seen — said, "[N]o, finish her off." Bell told Long to break the victims neck. Long refused. Bell said, " . . . Im sure youve been in gang fights from Hoover, right? [I]f youre from Hoover, youll break her neck." Long refused again and went out into the garage. He came back in just in time to see Bell drop the lamp on the victims head. The victim stopped moving. DeMola "walked over her mom like it wasnt her mom." She smiled at Bell.

Both Long and Bell got in the back seat of the Xterra, and DeMola drove them away. When the accident happened, Bell told DeMola to keep going. She dropped them off, and they walked back to Longs house. On the way, Bell threw any incriminating clothing, including his shoes, into a drain. Long did not realize that his own shoes were bloody until he got home. Long denied stealing anything or getting any money.

Finally, Long admitted that the waffle-patterned footprints had been left by his size 13 Fila shoes.

II

ISSUES ARISING OUT OF THE INITIAL CASE FILING AND ARRAIGNMENT

DeMola and Bell contend that they were originally charged and arraigned in juvenile court, and therefore all subsequent proceedings in adult criminal court were void. DeMola also contends that, at her arraignment, she received ineffective assistance of counsel.

A. Additional Factual and Procedural Background.

On January 18, 2002, the prosecution filed a felony complaint against DeMola and Bell. In the caption, under the words "FELONY COMPLAINT," it also said "JUVENILE." However, it alleged that Welfare and Institutions Code section 707, subdivision (d)(1) and (2)(A) applied. These provisions were enacted in 2000 as part of Proposition 21. They carve out an exception to the juvenile courts exclusive jurisdiction over children (see Welf. & Inst. Code, § 602, subd. (a)) by allowing the prosecution, under certain circumstances, to "file an accusatory pleading" against a child "in a court of criminal jurisdiction . . . ."

On January 22, 2002, the prosecution filed an amended felony complaint against DeMola and Bell, adding Long as a defendant. This complaint did not say "JUVENILE." It continued to allege that Welfare and Institutions Code section 707, subdivision (d)(1) and (2)(A) applied to DeMola and Bell.

Also on January 22, 2002, DeMola and Bell were arraigned by Judge Jean Pfeiffer Leonard.⁵ At that time, Judge Leonard was sitting in Department J1 and was assigned to hear juvenile delinquency matters. (In the Matter of Apportionment of Court Business, etc., for the Calendar Year 2001, Order, Amendment #1 (Super.Ct. Riverside County, Jul. 27, 2001).)

5 It is not entirely clear whether this arraignment was on the original complaint or the first amended complaint. According to DeMola, it was on the original complaint, and the first amended complaint was not filed until later that day. We may assume, without deciding, that this is correct.

Bell appeared with counsel. DeMola appeared without counsel; however, her father was present. After Bell was arraigned, there was this discussion:

"[THE COURT:] I was given some information this morning that you actually hired Mr. Harmon to be here today.

"MINORS FATHER: That is correct.

"THE COURT: Did you actually sign a retainer agreement with him?

"MINORS FATHER: Yes, I did.

"THE COURT: And did you pay him?

"MINORS FATHER: Yes, I did.

"[PROSECUTOR]: This may be a call from Mr. Harmon right now.

"THE COURT: Okay. Just a second. We may have a call from Mr. Harmon as we speak.

"(Discussion off the record)

"THE COURT: [¶] . . . [¶] [W]hy doesnt he talk to [Bells counsel] right now.

"(Discussion off the record)

"THE COURT: . . . Mr. Harmon just called [the prosecutor] on his cell phone. [¶] You had a conversation with Mr. Harmon . . . ?

"[PROSECUTOR]: Yes. I advised him that we had directly filed the matter against Natalie De[M]ola, filing it against her as if she were an adult; that her co-defendant, Terry Bell, had already been arraigned; and that we had set his matter for a Felony Settlement Conference in Department 63 on February 4th, plus a 15-court-day time waiver.

"He indicated that thats what he would like to have done on Natalies case as well, and I believe that has been communicated as well to [Bells counsel].

"THE COURT: I understand that youre going to make a special appearance.

"[BELLS COUNSEL]: Yes. [S]ince Im here, I have no problem specially appearing."

The arraignment itself went as follows:

"THE COURT: [¶] . . . [¶] . . . Natalie, is your true name Natalie Le De[M]ola?

"THE MINOR: Yes.

"THE COURT: And is your birth date January 19th, 1985?

"THE MINOR: Yes.

"THE COURT: And at this time, [Bells counsel], does your client waive further reading of the Complaint and further reading of her rights?

"[BELLS COUNSEL]: Yes.

"THE COURT: At this time, Natalie, do you enter denials and not guilty pleas as to Count I and the additional allegations?

"THE MINOR: Yes.

"THE COURT: [¶] . . . [¶] Natalie, you have the right to have a preliminary hearing within a specified period of time. [T]he first hearing is called a Felony Settlement Conference . . . . At that hearing, the attorneys will talk. Theyll get all of their information. So Im asking if you would waive time for your preliminary hearing to the date of February 4th plus 15 court days. Is that okay with you? [¶] . . . [¶]

"THE MINOR: Yes."

On February 4, 2002, the prosecution filed a second amended felony complaint against DeMola, Bell, and Long. It did not say "JUVENILE," and it continued to allege that Welfare and Institutions Code section 707, subdivisions (d)(1) and (d)(2)(A) applied. DeMola, Bell, and Long were rearraigned on the second amended complaint in Department 42 by Judge Timothy J. Heaslet.

B. Filing and Arraignment in Juvenile Court.

As the original complaint alleged, the prosecution had discretion to prosecute DeMola and Bell in juvenile court or in adult court, for two reasons. First, they were accused of a murder committed when they were 16 or older. (Welf. & Inst. Code, § 707, subd. (d)(1).) Second, they were accused of an offense committed when they were 14 or older which, if committed by an adult, would be punishable by death or life imprisonment. (Welf. & Inst. Code, § 707, subd. (d)(2)(A).) DeMola and Bell, however, essentially argue that the prosecutions initial election to proceed in juvenile court was binding because the juvenile court thereupon acquired exclusive jurisdiction.

They waived this contention by failing to raise it below. "Whether a case should proceed in juvenile or adult court `does not involve an issue of subject matter jurisdiction. [Citation.]" (In re Harris (1993) 5 Cal.4th 813, 837, quoting People v. Nguyen (1990) 222 Cal.App.3d 1612, 1619.) "The juvenile court and the criminal court are divisions of the superior court, which has subject matter jurisdiction over criminal matters and civil matters, including juvenile proceedings. [Citation.] When exercising the jurisdiction conferred by the juvenile court law, the superior court is designated as the juvenile court. [Citation.] Accordingly, when we refer . . . to the jurisdiction of the juvenile court or the jurisdiction of the criminal court, we do not refer to subject matter jurisdiction, but rather to the statutory authority of the particular division of the superior court, in a given case, to proceed under the juvenile court law or the law generally applicable in criminal actions. [Citation.]" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 548, fn. 3.)

The trial of a juvenile in adult court, even if unauthorized, "constitute[s] an excess of jurisdiction, not a lack of fundamental jurisdiction. [Citation.]" (In re Harris, supra, 5 Cal.4th at p. 837.) Accordingly, "`[i]t is well settled that a person who is eligible to have his or her case proceed in juvenile court may waive this right either knowingly, or by failing to timely and properly raise the matter. [Citation.]" (Id. at pp. 837-838, quoting People v. Nguyen, supra, 222 Cal.App.3d at p. 1620; see also People v. Level (2002) 97 Cal.App.4th 1208, 1211-1212.)

Even if not waived, however, the contention lacks merit. The record demonstrates that the initial complaint was not filed in juvenile court. Juvenile delinquency proceedings are commenced by filing a petition, not a complaint. (Welf. & Inst. Code, § 650, subd. (c).) The complaint here did not include allegations that would have had to be in a delinquency petition, such as that DeMola and Bell came under Welfare and Institutions Code section 602, subdivision (a). (Welf. & Inst. Code, § 656, subd. (c); see also id., subds. (e), (g), (h).) Contrariwise, it did include allegations that supported direct filing in adult court under Welfare and Institutions Code section 707, subdivision (d). Finally, the prosecution gave the case number an "RIF" (felony) prefix, not an "RIJ" (juvenile) prefix.

We can only speculate as to why Judge Leonard handled the arraignment. The fact that she did, however, did not change the nature of the case. As a judge of the superior court, she had the authority to conduct an adult criminal arraignment. (See Pen. Code, §§ 976, subd. (a), 988.) We also note that alleged juvenile delinquents are not "arraigned" at all; instead, they are accorded a detention hearing. (Welf. & Inst. Code, § 632.) We therefore conclude that, at all times, the case was filed and pending in adult court, not juvenile court.

Even assuming that the prosecution did, in some sense, file the case in juvenile court, it still was not precluded from prosecuting DeMola and Bell in adult court. Welfare and Institutions Code section 606 states, as relevant here: "When a petition has been filed in a juvenile court, the minor who is the subject of the petition shall not thereafter be subject to criminal prosecution based on the facts giving rise to the petition unless the juvenile court finds that the minor is not a fit and proper subject to be dealt with under this chapter . . . ." (Italics added.) Here, the prosecution filed a complaint, not a petition; hence, Welfare and Institutions Code section 606, by its terms, did not apply.

Finally, DeMola and Bell also argue that the trial court failed to comply with Welfare and Institutions Code section 707, subdivision (d)(4). That subdivision provides that, when a case is filed directly in adult court under Welfare and Institutions Code section 707, subdivision (d), at the preliminary hearing, the magistrate must either "make a finding that reasonable cause exists to believe" that the case is eligible for direct filing, or else "transfer the case to the juvenile court . . . ."

Once again, DeMola and Bell waived this argument by failing to raise it below. Moreover, they cannot show that the asserted error was prejudicial. "Irregularities in pretrial commitment proceedings that are not jurisdictional in the fundamental sense require reversal on appeal only where the defendant shows he was deprived of due process or suffered prejudice as a result. [Citations.]" (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990.) The magistrate did find that there was probable cause for the murder charge and for the alleged special circumstances. These findings, combined with DeMola and Bells ages at the time of the crimes, placed them squarely within Welfare and Institutions Code section 707, subdivision (d).

Finally, DeMola and Bell contend that, because their initial arraignment on January 22, 2002, supposedly was void, the delay between their arrest and their (re)arraignment on February 4, 2002, violated their right to a speedy trial. As we have already held, however, their initial arraignment was proper and valid.

C. Ineffective Assistance by DeMolas Counsel at Arraignment.

DeMola argues that Attorney Harmon rendered ineffective assistance because he did not know that the case had been filed in, and was proceeding in, juvenile court. As we held in part II.B, ante, however, the case was actually filed in adult court. Harmon knew — because the prosecutor truthfully told him — that the case had been filed directly in adult court.

DeMola also argues that Harmon, as well as Bells counsel, who made a special appearance for her, rendered ineffective assistance by failing to advise her of her rights and the consequences of waiving them. If she is referring to her right to be tried in juvenile court, we have already rejected the existence of this supposed right in part II.B, ante. If she is referring to other rights, it is not at all clear which ones.

At a felony arraignment, the magistrate is supposed to read the complaint aloud, give the defendant a copy of it, and inform the defendant of his or her right to counsel. If the defendant is a minor, the magistrate is also supposed to appoint counsel for the minor (or notify one of the minors parents). (Pen. Code, §§ 858, 859, 987, subd. (a), 988.) Here, DeMola had retained counsel; thus, any failure to advise her of her right to counsel was harmless. Also, absent a record to the contrary, we must assume that her retained counsel and/or Bells counsel advised her of her right to notice of the charges and to a copy of the complaint. Moreover, even if they did not, we cannot imagine how she was prejudiced. Similarly, we also must assume that they advised her of her speedy-trial rights; even if they did not, the trial court did advise her of them, to some extent, and she has not claimed that, if she had been given different or additional advice, she would have not have waived her speedy-trial rights. Thus, she cannot show ineffective assistance.

III

CONTINUANCE OF THE PRELIMINARY HEARING

DeMola contends that, by continuing the preliminary hearing from September 27 to October 25, 2002, the trial court violated her right to a speedy trial.

A. Additional Factual and Procedural Background.

On September 25, 2002, Long filed a written motion to continue the preliminary hearing, which was set, at that point, for September 27. On September 27, the prosecution joined in the motion. DeMolas counsel objected to a continuance, and DeMola refused to waive time. Nevertheless, the trial court, finding good cause, continued the preliminary hearing to October 25.

B. Analysis.

Preliminarily, we note that DeMola waived her right to a speedy trial by failing to make a subsequent motion to dismiss. "The right to a speedy trial . . . will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss." (People v. Wilson (1963) 60 Cal.2d 139, 146.) "The defendant must . . . move to dismiss . . . so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided." (Id. at p. 147.)

Separately and alternatively, however, we find no error. There are three sources of a criminal defendants right to a speedy trial. First, there is a federal constitutional right to a speedy trial. (U.S. Const., 6th & 14th Amends.; People v. Harrison (2005) 35 Cal.4th 208, 225.) Second, there is a state constitutional right to a speedy trial. (Cal. Const., art. I, § 15; Harrison, at p. 225.) Third and finally, there are statutory speedy-trial rights. We find it most convenient to discuss these in the reverse order.

The statutory speedy-trial provisions on which DeMola relies include Welfare and Institutions Code sections 657, 682, and 700 and California Rules of Court, former rules 1485 and 1486 (see now rules 5.774 and 5.776). These provisions all apply to juvenile delinquency cases. As we held in part II.B, ante, however, the case was not in juvenile court; accordingly, these statutes and rules did not apply.

DeMola also relies on Penal Code section 1382. That statute, however, as relevant here, is triggered only after the defendant is either (1) "held to answer" (Pen. Code, § 1382, subd. (a)(1)) or (2) "arraign[ed] on an indictment or information" (id., subd. (a)(2)). It simply does not speak to a delay when, as here, a preliminary hearing has not yet been held and an information has not yet been filed.

In her reply brief, DeMola additionally relies on Penal Code section 1049.5. That statute, as relevant here, provides: "In felony cases, the court shall set a date for trial which is within 60 days of the defendants arraignment in the superior court unless, upon a showing of good cause as prescribed in Section 1050, the court lengthens the time." It was enacted in 1990, before trial court unification in 1998. Hence, we do not believe "arraignment in the superior court" was intended to refer to an arraignment on a complaint, which took place, at that time, in municipal court; it was intended to refer to an arraignment on an indictment or information, which took place (and still does) in superior court. (See Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1169, 1171 ["[t]he voluntary unification of the municipal and superior courts was not intended to fundamentally alter preexisting criminal procedure"].) Penal Code section 1049.5 therefore does not add anything to Penal Code section 1382. In any event, even when Penal Code section 1049.5 does apply, it permits a continuance "upon a showing of good cause . . . ." The trial court found good cause, and DeMola has not challenged this finding.

Incidentally, the statute that actually does require a speedy preliminary hearing following the arraignment on the complaint is Penal Code section 859b. It provides, as relevant here: "Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment [or] plea, . . . unless . . . [¶] [t]he defendant personally waives his or her right to preliminary examination within the 10 court days. [¶] . . . [¶] The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment [or] plea, . . . unless the defendant personally waives his or her right to a preliminary examination within the 60 days."

DeMola, however, has waived the benefits of Penal Code section 859b by not citing it. Separately and alternatively, it was not violated. By September 27, 2002, DeMola had long since waived both the 10-day and 60-day provisions of Penal Code section 859b. Once they have been waived, they are waived for good; they cannot be restarted. (See People v. Love (2005) 132 Cal.App.4th 276, 284-286.) We therefore conclude that DeMolas statutory speedy-trial rights were not violated.

Accordingly, we turn to her constitutional speedy-trial rights. Absent a statutory violation, to make out a state constitutional violation, a defendant must show prejudice. (People v. Martinez (2000) 22 Cal.4th 750, 769; People v. Roybal (1998) 19 Cal.4th 481, 513.) DeMola has not done so. She complains that she remained in custody for over two years. The particular continuance to which she objected, however, was for less than a month. In any event, the typical result of a pretrial continuance is that the defendant stays in custody longer before trial. Absent a delay so long as to result in "oppressive . . . incarceration" (see Martinez, at p. 763), this, by itself, cannot be sufficient prejudice to make out a violation of the state constitutional speedy-trial right. DeMola also claims that "once the trial finally commenced, the memories of the witnesses were arguably distorted and faded." This speculative possibility falls short of showing actual prejudice. Moreover, once again, DeMola cannot show that any memory loss was due to the single one-month continuance at issue.

Finally, DeMola did not yet have any federal speedy-trial rights. "`Under the federal Constitution, . . . the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.] The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: "[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." [Citation.] [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 891, quoting People v. Martinez, supra, 22 Cal.4th at pp. 754-755, quoting United States v. Marion (1971) 404 U.S. 307, 320 [92 S.Ct. 455, 30 L.Ed.2d 468].) Even assuming that her federal speedy-trial rights had attached, they were not violated, because she has not challenged the finding of good cause for the continuance and because she has not shown prejudice. (See generally Doggett v. United States (1992) 505 U.S. 647, 651 [112 S.Ct. 2686, 120 L.Ed.2d 520].) A one-month delay is not presumptively prejudicial. (See id. at p. 652, fn. 1; Horning, at pp. 893-894.)

IV

THE APPLICATION OF MIRANDA TO DEMOLAS STATEMENTS TO OFFICER WILSON AT THE SCENE OF THE ACCIDENT

DeMola contends that her statements to Officer Wilson at the accident scene were inadmissible under Miranda. ⁶ This turns on whether she was in custody at the time.

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

A. Additional Factual and Procedural Background.

Before trial, DeMola filed a motion to suppress these statements, on grounds including that they were obtained in violation of Miranda. The prosecution filed a written opposition, supported by a police report regarding the statements and a transcript of the statements.

According to the police report, Officer Wilson asked DeMola how the collision had occurred. She said "her house was being robbed and she was driving her car northbound" when the pickup hit her. At first, she drove away, because she had no insurance, and she was scared. However, she came back because "[she] didnt want a hit and run on [her] record."

At that point, "[d]ue to the cold temperature and wind," Officer Wilson asked DeMola if she would like to sit in his patrol car. They sat in the front seat together. He put his own jacket over her. He also "turned the . . . heater on for warmth for her." He turned on a tape recorder. He then asked her what had happened before she left her house.

In the course of the ensuing interview, there was this exchange:

"[DeMola]: Is [my mom] ok?

"Officer Wilson: I dont know that is what there [sc. "theyre"?] . . .

"[DeMola]: Can I walk up there?

"Officer Wilson: I think they transported her to the hospital. [¶] . . . [¶]

"[DeMola]: [C]an I walk up there please?

"Officer Butera:⁷ Sit up here for a second.

7 The police report does not indicate where Officer Butera was at this point. At trial, however, Officer Wilson testified that Officer Butera was talking to DeMola through the passenger window of the patrol car.

"[DeMola]: But I need to see my mom.

"Officer Butera: [W]ell[,] you need to see that she is not over there right now[,] your mom is not over there right now."

The interview went on. At one point, DeMola asked:

"[DeMola]: Where is my Dad?

"Officer Wilson: I think the[y]re trying to locate him[.]"

Shortly afterward, Officer Wilson got out of the patrol car to confer with Officer Butera. They realized that DeMola had made some conflicting statements. They then returned to the patrol car. After Officer Wilson asked a few relatively innocuous questions, Officer Butera asked:

"Officer Butera: Ok[,] when you came down the stairs what did you see[?]

"[DeMola]: My mom laying on the floor.

"Officer Butera: You told me you never saw your mom.

"[DeMola]: Yes I did.

"Officer Butera: [N]o[,] you told me [—] Im not silly here[,] OK. I know what you told me[,] it[]s an important situation[,] so I would remember yes or no.

"[DeMola]: I know it is.

"Officer Butera: I know you know it is []cause you know what condition your moms in. You also know who was in this vehicle with you when you got in a collision down here. And Im gonna tell you this, these two other people that ran into your car[,] that you ran out in front of[,] this is a small situation[,] its a traffic collision[,] that lady is not hurt very bad. Ok[,] so it[]s not that big of a deal[,] it[s] not like you[re] going to jail over it. But what you are going to jail over eventually[,] if you do not decide to wise up and get in front of all of this[,] is the fact that those people both saw the passenger in your vehicle[,] they both know[,] as we know[,] you hauled ass down the street down there and dropped them off somewhere[,] either at a house or on the roadway somewhere. Here is the problem for you. Your moms not looking too good. I have to be real honest with you[,] if something happens to her[,] you[re] not only going to live with that, you[re] going to live with yourself in a prison cell. []Cause right now you[re] probably looking at being an accomplice on this whole situation. So you might want to start thinking about to help yourself out[,] you might as well be a witness on this thing[,] Ok[,] a witness is a hell of a lot better because a witness gets to live at home everyday [sic] [,] an accomplice gets to live in a jail cell. So you better start providing some names real quick[,] this is not a movie[,] Ok[,] this is not some freckin [sic] game on TV. Your mom is hurt[,] and people that hurt[,] sometime[s] they stay hurt. Now what was this person[]s name that was in the car with you[?] We are not playing games . . . with you no more. You will take it real hard on this[,] Im telling you right now. You will do jail time. Unless you start talking some honesty.

"[DeMola]: For doing nothing?

"Officer Butera: Thats right[,] cause you[re] doing nothing right now and you know a lot. It[]s called hindering an investigation. You are hindering big time[,] because everybody around you knows youre a part of this. Now[,] Im telling you right now, you can do [—] the best thing is to be honest right here, you[re] not in jail right now. If you want things to stay that way[,] you might want to consider helping out your mom. Who was this person that was with you in the car?

"[DeMola]: Can I start my story over then?"

The interview then continued for some time,⁸ until Officer Wilson stopped it so he could confer with some other officers. Meanwhile, DeMolas father arrived and asked to speak to her; they were allowed to talk privately. In her fathers presence, DeMola agreed to go to the police station for a further interview. At the station, the police gave DeMola Miranda warnings. She waived her rights and agreed to be interviewed.

8 DeMola claims that she was interviewed at the scene for "at least" 90 minutes. As the audiotapes of the interviews have not been transmitted to us (see Cal. Rules of Court, rule 8.224(a)), we cannot verify this claim.

The trial court denied the motion to suppress. It explained: "The Court finds, based on the totality of the circumstances, a reasonable person in her position at that time would not believe they were in custody. The police . . . were attempting to ascertain what role, if any, she played in the crime, whether she played any role or not, or whether she was a victim/witness to her mothers assault. And the police were attempting to piece together what happened."

B. Analysis.

"Miranda warnings are due only when a suspect interrogated by the police is `in custody." (Thompson v. Keohane (1995) 516 U.S. 99, 102 [116 S.Ct. 457, 133 L.Ed.2d 383].) "`Absent "custodial interrogation," Miranda simply does not come into play. [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 401, quoting People v. Mickey (1991) 54 Cal.3d 612, 648.)

"[T]he court must apply an objective test to resolve `the ultimate inquiry: `[was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest. [Citation.]" (Thompson v. Keohane, supra, 516 U.S. at p. 112, fn. omitted, quoting California v. Beheler (1983) 463 U.S. 1121, 1125 [103 S.Ct. 3517, 77 L.Ed.2d 1275] and Oregon v. Mathiason (1977) 429 U.S. 492, 495 [97 S.Ct. 711, 50 L.Ed.2d 714.) "Whether custody has occurred short of a formal arrest depends upon the totality of the circumstances, including such factors as: (1) the site of the interrogation; (2) whether the investigation has focused on the suspect; (3) whether the indicia of arrest are present; and (4) the length and form of the questioning. No one factor is dispositive. [Citation.]" (People v. Morris (1991) 53 Cal.3d 152, 197, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "[C]ustody must be determined based on a how a reasonable person in the suspects situation would perceive his circumstances." (Yarborough v. Alvarado (2004) 541 U.S. 652, 662 [124 S.Ct. 2140, 158 L.Ed.2d 938].)

"[W]e review the trial courts findings of historical fact under the deferential substantial evidence standard, but decide the ultimate constitutional question independently. [Citations.]" (People v. Holloway (2004) 33 Cal.4th 96, 120.)

DeMola was the focus of an investigation, particularly once Officer Butera accused her of "hindering an investigation" and "being an accomplice." " . . . `Accusatory questioning is more likely to communicate to a reasonable person in the position of the suspect, that he is not free to leave. [Citation.]" (People v. Bellomo (1992) 10 Cal.App.4th 195, 199, quoting People v. Lopez (1985) 163 Cal.App.3d 602, 608, fn. 4.) However, "[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officers degree of suspicion will depend upon the facts and circumstances of the particular case." (Stansbury v. California (1994) 511 U.S. 318, 325 [114 S.Ct. 1526, 128 L.Ed.2d 293].)

For example, in Oregon v. Mathiason, supra, 429 U.S. 492, the defendant had agreed to come down to the police station. The officer told the defendant he was not under arrest. However, the interview began in an accusatory fashion. The officer said that the police believed the defendant had been involved in a burglary and that his fingerprints had been found at the scene (which was not true). He also told the defendant that the judge or the district attorney might take his truthfulness into consideration. The defendant "sat for a few minutes," then confessed. (Id. at p. 493.) The Supreme Court nevertheless held that the defendant was not in custody. (Id. at pp. 495-496.) It added: "The officers false statement about having discovered Mathiasons fingerprints at the scene was found by the Supreme Court of Oregon to be another circumstance contributing to the coercive environment which makes the Miranda rationale applicable. Whatever relevance this fact may have to other issues in the case, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule." (Ibid.)

Here, similarly, Officer Butera basically advised DeMola that she was not under arrest: "[Y]ou[re] not in jail right now. If you want things to stay that way[,] you might want to consider helping out your mom." He told her, "[W]hat you are going to jail over eventually[,] if you do not decide to wise up and get in front of all of this[,] is the fact that those people both saw the passenger in your vehicle . . . ."

The interview took place at the scene of the accident, not at the police station. Although DeMola was sitting in a patrol car, she chose to do so, to stay warm. Also, she was sitting in the front seat. When she asked to walk home to see her mother, the officers did not tell her she was not free to go; they merely said her mother was no longer there. Likewise, when she asked where her father was, they said they were trying to locate him. Once her father did arrive at the scene, he was allowed to speak to her privately. There were none of the traditional indicia of arrest; she was not handcuffed or otherwise restrained, nor was she told that she was under arrest. Finally, when the police wanted to continue the interview down at the station, they asked for her consent, and she gave it.

DeMola relies heavily on the fact that she was a minor at the time. While this might be relevant to whether her statements were voluntary (see Gallegos v. State of Colorado (1962) 370 U.S. 49, 54 [82 S.Ct. 1209, 8 L.Ed.2d 325]; Haley v. State of Ohio (1948) 332 U.S. 596, 599-600 [68 S.Ct. 302, 92 L.Ed. 224]), it was not particularly relevant to whether she was in custody. (See Yarborough v. Alvarado, supra, 541 U.S. at pp. 666-668 [state courts failure to consider defendants young age in determining whether he was in custody was not unreasonable application of clearly established law].)

DeMola also argues that the police violated Welfare and Institutions Code section 625, which, as relevant here, provides: "In any case where a minor is taken into temporary custody on the ground that there is reasonable cause for believing that such minor is a person described in Section . . . 602, . . . the officer shall advise such minor that anything he says can be used against him and shall advise him of his constitutional rights, including his right to remain silent, his right to have counsel present during any interrogation, and his right to have counsel appointed if he is unable to afford counsel." She waived this argument by failing to raise it below. In any event, this statute, like Miranda itself, does not apply unless and until the minor is in custody.

Thus, it appears that, although DeMola was a suspect — and knew she was a suspect — a reasonable person in her position would also have known that she was still free to leave. She chose, instead, to talk to the officers, in the hope of convincing them that she was a victim rather than a perpetrator. We therefore conclude that she was not in custody at the time.

V

THE EXCLUSION OF EVIDENCE OFFERED TO IMPEACH BREWER

Defendants contend the trial court erred by excluding evidence offered to impeach Cedrick Brewer.

A. Additional Factual and Procedural Background.

Cedrick Brewer was one of the three neighbors who saw DeMola repositioning the Xterra in her garage around the time of the crime. Brewer also testified that he drove by the accident scene. He went to tell DeMolas mother that DeMola had been in an accident, looked inside the house, and saw the victim "laying on the floor."

On May 8, 2001, a police officer interviewed Brewer. According to this officer, Brewer denied having any information about the homicide. According to Brewer, however, he told the officer "the same thing I told every officer, every person who asked me about the case."

On June 3, 2001, Brewer was arrested on an unrelated charge. On June 4, 2001, a second police officer interviewed him in jail. Apparently his statement to the second officer was consistent with his testimony at trial. DeMolas counsel therefore sought to impeach Brewers trial testimony by establishing that, on June 3, upon his arrest, he had been charged with robbery; but on June 5, immediately after talking to the second officer, he had been allowed to plead guilty to lesser charges.

DeMolas counsel began by asking Brewer if he had been charged with a felony, namely "strong-arm robbery . . . ." The prosecutor objected. The trial court then heard argument outside the presence of the jury.

The prosecutor asserted that Brewer had not been charged with robbery; rather, he had been charged with battery (Pen. Code, § 242) and shoplifting (Pen. Code, § 490.5, subd. (a)), both misdemeanors. DeMolas counsel disagreed. He asserted that, according to the second officers police report (as well as a conversation that he himself had had with Brewer), Brewer had, in fact, been charged with robbery.

The trial court responded, " . . . Im not going to mislead this jury." It admonished DeMolas counsel that "were not trying this case on the police reports." Instead, to resolve the dispute, the trial court "pulled" Brewers "record," evidently via computer. This record showed that Brewer had been charged with "490.5, shoplifting, and 242, misdemeanor battery."

DeMolas counsel insisted that Brewer had been arrested for robbery, but conceded that he might not have been charged with robbery; he suggested that a complaint may not have been filed until after the interview with the second officer. Meanwhile, Bells counsel argued that what Brewer thought he was charged with was relevant, regardless of what he was actually charged with. The trial court ruled: "You can go into what he thought. But Im going to tell the jury what the charge was and what he pled to and the sentence."

Accordingly, the trial court took judicial notice, and instructed the jury, that "Mr. Brewer was charged . . . with a violation of Penal Code [s]ection 490.5, commonly referred to as shoplifting, as a misdemeanor. And in addition, a violation of Penal Code [s]ection 242, commonly referred to as battery, as a misdemeanor. And Mr. Brewer, on June the 5th, entered a plea of guilty to Counts I and II. He was given three days in the county jail, credit for time served of three days, and released — and was placed on two years of summary probation."

Upon further cross-examination, Brewer admitted that, when speaking to the second officer, he was under the belief that he had been arrested for "strong-arm robbery."

B. Analysis.

"`[N]ot every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witnesss] credibility" [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 372, quoting People v. Frye (1998) 18 Cal.4th 894, 946, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [106 S.Ct. 1431, 89 L.Ed.2d 674].)

Defendants argue that the trial court "refus[ed] to permit [them] to cross-examine Brewer regarding the mysterious dropping of the felony strong-arm robbery charges against him . . . ." Not true. They were able to establish that, when Brewer spoke to the second officer, he needed a deal; and after he spoke to the second officer, he got a deal. The only thing defendants were not able to establish was that Brewer was actually charged with — as opposed to arrested for — robbery. According to the record, however, this was because Brewer was not actually charged with robbery. Conspicuously, defendants do not claim that the trial court erred by taking judicial notice of this.

It follows that the trial court did not improperly restrict defendants cross-examination of Brewer. Even assuming that it did, however, the error was harmless under any standard. Once again, defendants were able to impeach Brewer, even if not in precisely the way they had hoped. Moreover, two other neighbors corroborated Brewers testimony that DeMola did reposition the Xterra around the time of the crime. Accordingly, we are convinced, beyond a reasonable doubt, that the trial courts refusal to let defendants ask Brewer if he had been charged with robbery had no effect whatsoever on the jurys verdict.

VI

THE EXCLUSION OF EXPERT TESTIMONY THAT THE POLICE DEPARTMENTS EFFORTS TO OBTAIN DEMOLAS SHARE OF THE VICTIMS LIFE INSURANCE WERE IMPROPER

Defendants contend that the trial court erred by excluding an experts opinion that the police departments efforts to obtain DeMolas share of the victims life insurance were unethical.

A. Additional Factual and Procedural Background.

Sometime between December 2000 and February 2001, DeMolas father began shopping around for some life insurance. On March 16, 2001, he applied for policies on each member of the family, including the victim. On March 22, 2001, about two weeks before the victim was killed, a policy on her life went into effect. The policy provided for DeMola and her father to receive $250,000 each.

DeMolas counsel sought to call an insurance agent to testify that a lieutenant in the Corona Police Department had asked him whether, if DeMola was convicted, the department could "offset" its investigation costs against her share of the victims life insurance. DeMolas counsel also sought to introduce the testimony of an expert that "it is improper[] and unethical" for "the investigating entity [to] have a stake in the outcome of th[e] investigation." The prosecutor objected that the evidence was irrelevant and "would tend to mislead the jury . . . ."

The trial court held a hearing pursuant to Evidence Code section 402, at which the lieutenant testified and admitted making such an inquiry to the insurance agent. The trial court admitted the testimony of the insurance agent and the lieutenant. However, it excluded the testimony of the expert. Ultimately, the insurance agent did not testify (probably because he was recovering from some surgery). The lieutenant did testify and, once again, did admit making the inquiry.

B. Analysis.

"The trial court has wide discretion in determining relevance. [Citation.]" (People v. Chatman, supra, 38 Cal.4th at p. 371.) Here, the testimony of the police lieutenant and/or the insurance agent was sufficient to show that the investigation may have been biased by financial considerations. All the expert could have added was his opinion that such a bias would be unethical. What was relevant, however, was "[t]he existence or nonexistence of a bias, interest, or other motive" (Evid. Code, § 780, subd. (f)), not whether the bias was ethical or unethical; the bias would be relevant even if it was ethical. The trial court therefore did not abuse its discretion by concluding that the experts opinion was irrelevant. Finally, because the evidence had negligible probative value, excluding it did not violate the constitutional right to present a defense. (People v. Jenkins (2000) 22 Cal.4th 900, 1014-1015.)

VII

HEARSAY STATEMENTS OF BELL AND LONG

DeMola and Bell contend that the trial court erred by admitting, against them, hearsay statements by Long. Similarly, DeMola and Long contend that the trial court erred by admitting, against them, hearsay statements by Bell. Defendants argue that, as a matter of state law, these statements were not admissible under the exception for declarations against interest. (Evid. Code, § 1230.) They further argue that the admission of these statements violated the confrontation clause.

Alternatively, defendants also contend that, once the trial court did admit Bell and Longs hearsay statements, it should have given cautionary instructions regarding accomplice testimony.

A. Additional Factual and Procedural Background.

1. Longs Hearsay Statements to Earnest Seales.

a. The Police Version.

On September 16, 2001, Earnest Seales turned himself in on an outstanding warrant for burglary, and the police interviewed him.

Seales told the police that, in June 2001, Long had "bragg[ed] about killing [DeMola]s mother[.]" Long told Seales that "he punched her one time, knocked her unconscious, and thats what broke her neck . . . ." Long indicated that DeMolas boyfriend was also involved. Seales was not sure whether it was DeMola or the boyfriend who had approached Long. However, Long did say that DeMola "wanted her mom dead[.]" Long also said, "I got some cheese from [DeMola] for doing this"; "[t]he girl paid me to run up on her mom." Seales told police that he noticed that Long was wearing new jewelry.

Seales told police that the boyfriends name was "Steven." At the very end of the interview, however, he remembered that the boyfriends name was actually Terry Bell.

b. Sealess Version.

Seales testified that he was a close friend of Long. In May 2001, he had been present when Long burglarized a house. According to Seales, he drove Long to the house at Longs request, but he had no idea that Long intended to burglarize it, nor did he participate in burglarizing it.

Seales testified that, in June 2001, he and Long were "just . . . kickin back," when Seales happened to remark that DeMola was "cute." Long replied that she was "Terrys girlfriend." At that time, Seales had seen Bell around but did not know him by name.

Long then said that DeMola had approached him about killing her mother. According to Long, the victim was "[t]oo strict" and "wouldnt let [DeMola] do nothing." Long and a friend went into a house; "[w]e hit that bitch and then we had to dip out [i.e., leave]." Long "socked" the victim once, with his fist; "his friend [also] hit her, but he didnt know how many times[.]" Later, the victim died at a hospital. Long did not identify either the friend or the victim by name. Long told Seales he had not wanted to do it, and he regretted doing it. At trial, Seales claimed Long said he was not paid. Long thought his friend "probably" was paid, but he was not sure.

At the time, Seales did not believe Long, in part because Long was acting as if "nothing ever happened." However, Long ordered Seales "not to tell nobody," or he "would get[] [his] ass whooped."

Around September 2001, Seales heard that Long was attributing the earlier burglary to him. In addition, according to Seales, the police were harassing his family. Seales therefore turned himself in.

In April 2002, Seales pleaded guilty to the burglary.

2. Bells Hearsay Statements to Fernando Stevenson.

Fernando Stevenson testified that he had met Bell once or twice. In June or July 2001, he had been in a group of people that included Bell.

Stevenson admitted committing an unrelated murder. On August 28, 2001, when the police questioned him about it, he confessed. The police then asked him about Bell. Stevenson testified: " . . . I was trying to get the heat off me[, so] I started talking about what I heard about him." He told the police that Bell had admitted murdering a woman by smashing a vase over her head. At trial, however, Stevenson testified that he "just made that up" and that Bell never actually told him anything about a murder.

3. The Trial Courts Ruling.

In a trial brief, the prosecutor argued that both Longs hearsay statements to Seales and Bells hearsay statements to Stevenson were admissible as statements against penal interest. (Evid. Code, § 1230.) The prosecutor also argued that the statements were not testimonial for purposes of the confrontation clause and that hence they merely needed to feature sufficient particularized guarantees of trustworthiness, which they assertedly did.

DeMola filed a written motion in limine, objecting to all of these statements as insufficiently trustworthy for purposes of the confrontation clause. Long joined in the objection to Bells statements; Bell joined in the objection to Longs statements.

The trial court ruled that the statements were nontestimonial for purposes of the confrontation clause.⁹ It also ruled that both Bells statements and Longs statements were admissible as declarations against penal interest.

9 Technically, the trial court made this ruling solely with respect to Bells statements to Stevenson. Nevertheless, everyone seems to have assumed — not unreasonably — that it applied equally to Longs statements to Seales.

B. Analysis.

1. Admissibility Under State Law: The Hearsay Exception for Declarations Against Interest.

a. Waiver.

Defendants argue that the statements were not admissible as declarations against interest because they were not so disserving to the declarants interest as to be trustworthy and reliable.

This objection was never raised below. Indeed, at trial, DeMolas counsel conceded that Longs statements qualified as declarations against penal interest under state law. Defendants did argue that the statements did not "satisfy the constitutional requirement of trustworthiness" (italics altered), because Seales and Stevenson may have been lying. Their present contention, by contrast, is that the statements did not satisfy a state law requirement of trustworthiness, because Bell and Long may have been lying. We therefore conclude that this contention has been waived. (Evid. Code, § 353, subd. (a).)

b. Longs Statements to Seales.

Even if not waived, with respect to Longs statements, the contention lacks merit. "California law recognizes that evidence of declarations against penal interest may be admitted as an exception to the hearsay rule. [Citations.] But in this context, we have recognized that the trustworthiness of such declarations is limited and that the hearsay exception should not apply to collateral assertions within declarations against penal interest. [Citation.] In light of the high probability of unreliability which characterizes such `collateral assertions [citation], we have construed the hearsay exception `to be inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant. [Citation.]" (People v. Campa (1984) 36 Cal.3d 870, 882-883, quoting People v. Leach (1975) 15 Cal.3d 419, 439-441.)

According to the police, Longs hearsay statements were highly self-inculpatory. Seales had characterized Long as "bragging." Long admitted knocking the victim unconscious and breaking her neck, supposedly with a single punch. He also admitted getting paid. While he indicated that Bell, too, was involved, he did not specify what Bell had done, other than possibly approaching him on DeMolas behalf. The trial court thus correctly ruled that these statements were admissible as specifically disserving to Longs penal interest.

According to Seales, however, Longs hearsay statements were at least partially self-exculpatory. Supposedly, Long said that he hit the victim only once, but his "friend" may have hit her more than once. Long also specifically said that he did not get paid, though his "friend" "probably" did. Finally, Long expressed regret.

Bell and DeMola therefore rely on Sealess version of Longs statements. However, all the prosecution wanted to introduce was the police version of Longs statements. After all, in limine, the prosecution had only the police reports to go by. First, however, they had to call Seales and ask him to give his version. If he confirmed the police version, i.e., that Longs statements were self-inculpatory, Longs statements would be admissible as declarations against Longs penal interest. In that event, there would be no need to call a police officer to testify about Sealess statements. If, however — as actually happened — Seales contradicted the police version and testified that Longs statements were self-exculpatory, the prosecution could introduce the police version as a prior inconsistent statement by Seales. In sum, as a matter of state law, the prosecution could not introduce the police version at all unless and until it called Seales and gave him an opportunity to admit, explain, or deny the statements that the police attributed to him. (Evid. Code, §§ 770, 1235.)

Once it did so, there was sufficient evidence to sustain a finding that the police version (rather than Sealess version) was true. (See Evid. Code, § 403, subd. (a)(4).) Therefore, the trial court correctly let the police version go to the jury. If the jury found that the police version was, in fact, true, then (1) Sealess statements to the police were admissible as prior inconsistent statements, and (2) Longs (self-inculpatory) statements to Seales were admissible as declarations against penal interest. If, on the other hand, the jury found that Sealess version was true, then it should have disregarded Longs (self-exculpatory) statements to Seales. Defendants were entitled, on request, to an instruction to this effect. (Id., subd. (c)(1).) However, they did not request one.

c. Bells Statements to Stevenson.

The contention also lacks merit with respect to Bells statements. For the reasons just discussed, the prosecution began by calling Stevenson and asking him to give his version. He admitted telling the police that Bell told him that he had murdered a woman by smashing a vase over her head. He testified, however, that Bell never actually said this (or anything else) about the murder.

At that point, a jury could reasonably disbelieve Stevensons trial testimony and believe Stevensons statement to the police instead. If it did that, then Bells (inculpatory) statement to Stevenson was admissible as a declaration against penal interest. If, on the other hand, the jury found that Stevensons statement to the police was false, then it necessarily disregarded Bells supposed statements to him.

2. Admissibility Under the Federal Confrontation Clause.

The admission of a "testimonial" hearsay statement by a declarant who does not testify at trial violates the confrontation clause, unless (1) the declarant is unavailable and (2) the defendant has already had an opportunity to cross-examine him or her. (Crawford v. Washington (2004) 541 U.S. 36, 53-54, 59, 68-69 [124 S.Ct. 1354, 158 L.Ed.2d 177].) The admission of a "nontestimonial" hearsay statement, on the other hand, can never violate the confrontation clause. (Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266, 2274-2276, 165 L.Ed.2d 224]; see also Crawford, at pp. 50-53, 61, 68.)

In order to be testimonial, a hearsay statement must, at a minimum, be "`made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, [citation]." (Crawford v. Washington, supra, 541 U.S. at p. 52.) For example, "[s]tatements taken by police officers in the course of interrogations are . . . testimonial . . . ." (Ibid.; accord, Davis v. Washington, supra, 126 S.Ct. at pp. 2276-2279.)

Here, Longs statements to Seales were not made under circumstances that would lead an objective witness reasonably to believe that they would be available for use at a later trial. Long was simply chatting with a trusted friend, in a private setting. Thus, they were nontestimonial. Their admission could not and did not violate the federal confrontation clause.

Sealess statements to the police were testimonial. Seales, however, testified at trial; defendants had an opportunity to cross-examine him. Therefore, the admission of his statements to the police also did not violate the federal confrontation clause.

Essentially the same analysis applies to Bells statements. Bells statements (if he even made them) were not testimonial; Stevensons statements were testimonial, but Stevenson testified at trial.

We therefore conclude that the admission of Longs statements to Seales, and the admission of Bells statements to Stevenson, did not violate the confrontation clause.

3. Failure to Instruct on Accomplice Testimony.

"When the evidence at trial would warrant the jury in concluding that a witness was an accomplice of the defendant in the crime or crimes for which the defendant is on trial, the trial court must instruct the jury to determine if the witness was an accomplice. [T]he jury [i]s to be instructed . . . that the testimony of an accomplice is to be viewed with distrust and that the defendant may not be convicted on the basis of an accomplices testimony unless it is corroborated. [Citation.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1270-1271, fn. omitted.) Ordinarily, if accomplice testimony instructions are warranted at all, they must be given sua sponte. (People v. Box (2000) 23 Cal.4th 1153, 1208.) We may assume, without deciding, that this is true even when the accomplice giving the testimony is a codefendant. (But see People v. Smith (2005) 135 Cal.App.4th 914, 928 .)

"The rationale for instructing a jury to view with caution an accomplices testimony that incriminates the defendant is the accomplices self-interest in shifting blame to the defendant. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 601.) Thus, in this context, "`"testimony" . . . includes . . . all out-of-court statements of accomplices and coconspirators used as substantive evidence of guilt which are made under suspect circumstances. The most obvious suspect circumstances occur when the accomplice has been arrested or is questioned by the police. [Citation.] `On the other hand, when the out-of-court statements are not given under suspect circumstances, those statements do not qualify as "testimony" . . . . [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 245, quoting People v. Jeffery (1995) 37 Cal.App.4th 209, 218; see also People v. Brown (2003) 31 Cal.4th 518, 555 [accomplices declaration against own penal interest was not "testimony"]; People v. Williams (1997) 16 Cal.4th 635, 682 [accomplices statements made in course of and in furtherance of conspiracy were not "testimony"]; People v. Sully (1991) 53 Cal.3d 1195, 1230 [accomplices excited utterance was not "testimony"].)

Here, Longs statements were not made under suspect circumstances. Once again, Long and Seales were close friends; Long evidently trusted Seales enough to use him as a getaway driver when he committed a burglary. Long made his statements at a time when he and Seales were "just . . . kickin back." Finally, the statements were against Longs own penal interest. Accordingly, there is no reason to suppose that Long was engaged in an effort to shift the blame.

Likewise, Bells statements were not made under suspect circumstances. Stevenson, of course, testified that Bell did not make the statements at all. If Bell did make the statements, however, he did so when he and Stevenson were chatting among a group of mutual acquaintances. And again, the statements (if made) were against Bells own penal interest. Accordingly, there is no reason to suppose that either Long or Bell was engaged in an effort to shift the blame.

We therefore conclude that the trial court was not required to give cautionary instructions concerning accomplice testimony.

VIII

CONSPIRACY INSTRUCTIONS

Defendants contend that the trial court erred by giving conspiracy instructions because the information had neither charged nor alleged a conspiracy. Defendants also contend that the trial court gave an erroneous instruction on the definition of conspiracy. Finally, Long also contends that the trial court failed to respond adequately to a question from his jury concerning the conspiracy instructions.

A. Additional Factual and Procedural Background.

Defendants were not charged with conspiracy as a substantive offense. (See Pen. Code, § 182, subd. (a).) However, the prosecution took the position that the jury could find them vicariously guilty of murder under a conspiracy theory. Accordingly, at the request of the prosecution, the trial court gave conspiracy instructions. These included CALJIC No. 6.10.5 (Conspiracy And Overt Act — Defined — Not Pleaded As A Crime Charged), which stated:

"A conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of murder, and with the further specific intent to commit that crime[,] followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime, but is not charged as such in this case.

"In order to find a defendant . . . to be a member of a conspiracy, in addition to the proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one overt act. It is not necessary to such a finding as to any particular defendant that the defendant personally committed the overt act[,] if he or she was one of the coconspirators when the alleged overt act was committed.

"The term `overt act means any step taken or act committed by one or more coconspirators which goes beyond mere planning or agreement to commit a crime and which the advice [sic] or act is done in furtherance of the accomplishment of the object of the conspiracy.

"To be an `overt act, a step taken or act committed need not in and of itself constitute the crime, or even an attempt to commit the crime, which is the ultimate object of the conspiracy. Nor is it required that the act or step in and of itself be a criminal or unlawful act."

The conspiracy instructions also included CALJIC No. 6.20 (Withdrawal From Conspiracy), which stated:

"A member of a conspiracy is liable for the acts and declarations of his or her coconspirators until he or she effectively withdraws from the conspiracy or the conspiracy has terminated.

"In order to effectively withdraw from a conspiracy, there must be an affirmative and good faith rejection or repudiation of the conspiracy, which must be communicated to the other conspirators of whom he or she has knowledge.

"If a member of a conspiracy has effectively withdrawn from a conspiracy, he or she is not thereafter liable for any act of the coconspirators committed after he or she has withdrawn from the conspiracy. But he or she is not relieved of responsibility for the acts of his or her coconspirators committed while he or she was a member of the conspiracy."

On the second day of its deliberations, Longs jury sent out the following question: "Clarification of `conspiracy and `withdrawal from conspiracy. Definition is insufficient."

Longs counsel argued that "any further instruction would be inappropriate." However, he stipulated to the following response, which the trial court then gave: "The law of conspiracy and withdrawal is completely defined in the instructions given to the jury. The instructions are standard instructions approved by the Supreme Court and Courts of Appeal. The same instructions are given in all cases wherein conspiracy is alleged as a theory of liability. It would be inappropriate for this court to create any new or different definitions for this jury."

B. Analysis.

1. Instructing on Uncharged Conspiracy.

Defendants argue that the trial court should not have instructed on conspiracy at all, because the information did not allege a conspiracy. Because this is essentially a contention that they lacked notice of the charges, they waived it by failing to raise it below. (People v. Toro (1989) 47 Cal.3d 966, 976-977, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)

Even aside from waiver, this contention lacks merit. "It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] `Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory [citations]. [Citation.]" (People v. Belmontes (1988) 45 Cal.3d 744, 788-789, quoting People v. Remiro (1979) 89 Cal.App.3d 809, 842; accord, People v. Rodrigues (1994) 8 Cal.4th 1060, 1134; People v. Gallego (1990) 52 Cal.3d 115, 188-189.)

2. Instruction Defining Conspiracy.

Defendants argue that CALJIC No. 6.10.5 erroneously allowed the jury to find any one of them (e.g., Long) guilty of first degree murder, even if it found that only the other two (e.g., Bell and DeMola) had the specific intent to kill. We disagree.

The key portion of the instruction stated: "A conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of murder, and with the further specific intent to commit that crime . . . ." (Italics added.) If the jury found that Long did not have the specific intent to commit murder, then necessarily it would have found that he was not a member of the conspiracy.

Defendants rely on People v. Petznick (2003) 114 Cal.App.4th 663. There, the defendant was charged with conspiracy to commit murder, as a substantive offense. (Id. at p. 668.) The trial court gave CALJIC No. 8.69, which stated:

"`In order to prove th[e] crime [of conspiracy to commit murder], each of the following elements must be proved:

"`One, two or more persons entered into an agreement to unlawfully kill another human being;

"`Two, at least two of the persons specifically intended to enter into an agreement with one or more other persons for that purpose;

"`Three, at least two of the persons to the agreement harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being." (People v. Petznick, supra, 114 Cal.App.4th at p. 678; see also id. at p. 680.)

The appellate court held that this instruction was erroneous: "[F]or defendant to be guilty of the crime of conspiring to commit murder, he had to have been one of the participants who harbored the specific intent to kill. [Citation.] The . . . instruction does not say that. It says only that `at least two of the participants must have intended to kill and does not specify that defendant must have been one of them. Since the jury was aware that there were four participants, the instruction erroneously permitted the jury to find defendant guilty of conspiracy to commit murder without regard to whether or not he personally intended to kill so long as they found that at least two of the other participants harbored that intent." (People v. Petznick, supra, 114 Cal.App.4th at pp. 680-681.)

There are significant differences between the wording of CALJIC No. 6.10.5, as given in this case, and CALJIC No. 8.69, as given in Petznick. The instruction in Petznick separated out the elements of agreement and specific intent. It required that "two or more persons" enter into the necessary agreement. However, it required only that "at least two of th[os]e persons" have the necessary specific intent. Thus, in that courts view, the jurors could find that three persons entered into the agreement but that only two of them had the specific intent to kill.¹⁰ The instruction here, by contrast, combined the elements of agreement and specific intent. It required "an agreement between two or more persons with the [necessary] specific intent . . . ." Thus, unlike the instruction in Petznick, it required that each of the persons who entered into the agreement must also have had the specific intent to kill.¹¹

10 We note, however, that the instruction in Petznick required more than an agreement — it required "an agreement to kill unlawfully another human being." (People v. Petznick, supra, 114 Cal.App.4th at p. 678.) We question whether a jury could find that the defendant entered into an agreement to kill another human being, yet lacked the specific intent to kill.

11 At the prosecutions request, the trial court also instructed on the "natural and probable consequences" doctrine as it applies to a conspiracy. (CALJIC No. 6.11 [Conspiracy — Joint Responsibility] (6th ed. 1996).) In theory, this allowed the jury to find some of the defendants guilty of murder if they entered into a conspiracy to commit some other crime, even if they lacked the specific intent to kill.
Defendants do not appear to argue that this was error; hence, they have waived any such claim. In any event, the only type of conspiracy on which the jury was instructed, and the only type shown by the evidence, was a conspiracy to commit murder. Thus, it appears that this instruction, if superfluous, was harmless.

3. The Trial Courts Response to the Jurys Question.

Long argues that the trial court should have provided a more substantive response to his jurys question about the conspiracy instructions. Longs trial counsel, however, stipulated to the trial courts response. Accordingly, he either waived or invited the asserted error. (People v. Roldan (2005) 35 Cal.4th 646, 729; People v. Bohana (2000) 84 Cal.App.4th 360, 373.)

We recognize that, for the invited error doctrine to apply, it "`must be clear that counsel acted for tactical reasons and not out of ignorance or mistake." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49, quoting People v. Wickersham (1982) 32 Cal.3d 307, 330.) But this does not mean that defense counsel must state tactical reasons on the record, nor does it mean that the tactical reasons must be sound. "[T]he record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. . . . A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel." (People v. Cooper (1991) 53 Cal.3d 771, 831, italics added.) Here, by stipulating to the instruction, and by objecting to any other instruction, defense counsel amply demonstrated that he knew he had the choice between having the challenged instruction and not having it. Accordingly, the invited error doctrine applies.

Long therefore argues that, by stipulating to the instruction, his counsel rendered ineffective assistance. His counsel, however, could have reasoned that any jury confusion about the law of conspiracy was likely to work in his clients favor, by making the jury more likely to acquit him (or, at least, to deadlock). For example, there was precious little evidence that Long withdrew from the conspiracy. Although he (supposedly) refused to break the victims neck and went out to the garage instead, it would be a stretch to characterize this as communicating an affirmative rejection or repudiation of the conspiracy. Nevertheless, it appeared that the jury was seriously considering withdrawal. Longs counsel could have felt that any clarification of the conspiracy instructions would have prevented the jury from finding withdrawal. Thus, we cannot say that "there simply could be no satisfactory explanation" for his actions. (People v. Ledesma (2006) 39 Cal.4th 641, 746.)

IX

UNANIMITY INSTRUCTION

Defendants contend that the trial court erred by failing to give a unanimity instruction. (E.g., CALJIC No. 17.01.)

"A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.]" (People v. Maury (2003) 30 Cal.4th 342, 422-423.) "Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendants precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the `theory whereby the defendant is guilty. [Citation.]" (Ibid.)

Defendants could not very well kill the victim twice! If they committed murder at all, they committed it once and only once. Direct perpetration, aiding and abetting, and conspiracy were simply theories under which each defendant could be found guilty of murder. The jury did to have to agree unanimously on any one such theory. Moreover, even if the jury did rely on conspiracy, it did not have had to agree unanimously on any particular overt act. (People v. Prieto (2003) 30 Cal.4th 226, 251.) This would be true even if defendants had been charged with conspiracy as a substantive offense. (People v. Russo, supra, 25 Cal.4th at pp. 1133-1136.) Accordingly, the trial court quite properly did not give a unanimity instruction.

X

THE SUFFICIENCY OF THE EVIDENCE OF LONGS MENS REA

Long contends that there was insufficient evidence that he personally had the intent to kill, and, a fortiori, that he personally premeditated and deliberated, to support his conviction of first degree murder.

A. Intent to Kill.

1. Under an Aiding and Abetting Theory.

"To be guilty of a crime as an aider and abettor, a person must `aid[] the [direct] perpetrator by acts or encourage[] him [or her] by words or gestures. [Citations.] In addition, except under the natural-and-probable-consequences doctrine [citations], which is not implicated on the facts presented here, the person must give such aid or encouragement `with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the crime in question. [Citations.] When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person `must share the specific intent of the [direct] perpetrator, that is to say, the person must `know[] the full extent of the [direct] perpetrators criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrators commission of the crime. [Citation.] Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrators intent to kill and with the purpose of facilitating the direct perpetrators accomplishment of the intended killing — which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.]" (People v. Lee (2003) 31 Cal.4th 613, 623-624, quoting People v. Villa (1957) 156 Cal.App.2d 128, 134 and People v. Beeman (1984) 35 Cal.3d 547, 560.)

Long admitted, in his statement to the police, that he knew that DeMola and Bell intended to kill the victim. He further admitted, "I went to go with [Bell] to do it." His expected role was to "watch [Bells] back." He put on the beanie, bandanna, and gloves that Bell gave him; he then accompanied Bell into the house. This was ample evidence that he knew that Bell and DeMola intended to kill and, moreover, that he himself acted with the intent of facilitating a killing.

Long may also be trying to argue that he did not do anything to aid, facilitate, or encourage the crime (although, if so, he did not state this argument under a separate heading or subheading, as required; see Cal. Rules of Court, rule 8.204(1)(B)). "Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendants criminal responsibility. [Citation.]" (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) Longs participation, however, went far beyond "mere presence." Simply by agreeing to go with Bell and to watch his back, he encouraged the commission of the crime. In addition, to cover it up, he pushed over a radio and a bottle of water. Moreover, he restrained the victim, first in the closet, then by holding her. Finally, according to what he told Seales, he "socked" the victim and knocked her unconscious.

Admittedly, from time to time, Long wavered in his support of the crime (at least according to his own self-serving statement to the police). Before entering the house, he had "a change of heart," and he "asked [Bell] to think about what [they] were about to do . . . ." Later, when Bell told him to put the victim in a closet, he obeyed, but as soon as Bell went upstairs, he let her out again. When Bell came back downstairs, Long said, "[L]ets get out of here . . . youve done enough." Finally, when Bell ordered him to break the victims neck, he refused and walked out to the garage instead. As we discussed in part VIII.B.3, ante, however, the jury could reasonably find that this fell short of withdrawal. The affirmative aid and encouragement that he did render were sufficient to constitute aiding and abetting.

2. Under a Conspiracy Theory.

"`A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act `by one or more of the parties to such agreement" in furtherance of the conspiracy. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 120, quoting People v. Morante (1999) 20 Cal.4th 403, 416, quoting Pen. Code, § 184.) As we just discussed in part X.A.1, ante, there was sufficient evidence that Long intended that a murder be committed. The identical evidence was also sufficient to show that he intended to agree that a murder be committed.

Once Long entered into the necessary agreement with the necessary intent, he could be held criminally liable for his coconspirators commission of the murder agreed upon. Unlike an aiding and abetting theory, a conspiracy theory did not require him to do anything else to aid, facilitate, or encourage the commission of the crime. It was enough that one of his coconspirators did some overt act in furtherance of the conspiracy. Beating the victim to death undoubtedly qualified.

B. Premeditation and Deliberation.

1. Under an Aiding and Abetting Theory.

Long did not have to premeditate and deliberate personally. It would be sufficient that DeMola and Bell premeditated and deliberated and that Long then aided and abetted their commission of murder. (People v. Sanchez (1995) 12 Cal.4th 1, 33-35.) As already discussed, there was sufficient evidence of aiding and abetting.

Separately and alternatively, there was sufficient evidence that Long did personally premeditate and deliberate. "`An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported — preexisting motive, planning activity, and manner of killing — but `[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citations.]" (People v. Jurado, supra, 38 Cal.4th at pp. 118-119, quoting People v. Stitely (2005) 35 Cal.4th 514, 543.)

Long argues that, unlike DeMola and Bell, he had no motive to kill the victim. It would be more accurate, however, to say that he did not have the same motive. His motive, as he put it himself, was "peer pressure." He wanted to help DeMola and Bell — to "watch [their] back."

Long also admitted that he was motivated, at least in part, by Bells offer to pay him. He therefore notes that his jury found the financial-gain special circumstance not true. But this means (at worst) only that the verdict was inconsistent, not that there was insufficient evidence of a financial-gain motive. Inconsistency of the verdict is not grounds for reversal. (People v. Avila (2006) 38 Cal.4th 491, 600.)

Similarly, Long argues that he did not participate in DeMola and Bells planning activity. While he may not have planned for two months as they did, he did plan. Bell asked Long to come with him, "to watch [his] back." Long knew that Bell intended to commit murder, and Long agreed. They walked over to the victims house together. At Bells request, Long prepared to commit the murder by putting on a beanie, bandanna, and gloves. This was sufficient planning activity to rebut any possibility that Long acted on some "unconsidered or rash impulse."

Long, of course, claims that, because he did not carry out the killing, its manner and method cannot be attributed to him. Precisely because Long was an aider and abettor, however, he left the manner and method of the killing up to the others. As a result, the manner and method of the killing are not particularly probative of whether he did or did not premeditate and deliberate. It makes more sense to look to the manner and method in which he aided and abetted the killing, rather than the manner and method in which his codefendants carried it out. Thus, the evidence that he agreed in advance to participate in the murder, along with his motive and his planning activities, are sufficient to prove premeditation and deliberation.

2. Under a Conspiracy Theory.

"[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder . . . ." (People v. Cortez (1998) 18 Cal.4th 1223, 1237.) "[W]here two or more persons conspire to commit murder — i.e., intend to agree or conspire, further intend to commit the target offense of murder, and perform one or more overt acts in furtherance of the planned murder — each has acted with a state of mind `functionally indistinguishable from the mental state of premeditating the target offense of murder. [Citation.]" (Id. at p. 1232, quoting People v. Swain (1996) 12 Cal.4th 593, 608-609.) As Long does not dispute, there was sufficient evidence that he entered into a conspiracy to commit murder. Hence, by definition, there was sufficient evidence that he personally premeditated and deliberated.

XI

JURY DELIBERATIONS

A. Issues Concerning DeMola and Bells Jury.

1. Failure to Investigate Misconduct by Juror No. 5.

DeMola and Bell contend that the trial court erred by failing to investigate possible misconduct by Juror No. 5.

a. Additional Factual and Procedural Background.

On Monday, April 11 — the third full day of deliberations — the jury sent out a note stating: "Juror [No.] 7 has some concerns regarding a specific topic. Juror appears to have compromised case . . . by doing own investigation of evidence (vehicle). All the jury would like to talk w/judge."

The next morning, Tuesday, April 12, the trial court questioned the jury foreman (Juror No. 8) as follows:

"[THE COURT:] Did you receive information that a juror was doing some investigation?

"JUROR NO. 8: Um, it wasnt really an investigation. What happened was . . . she left here to go home after we were done for the day. And on the way home, she mentioned that she saw Mr. De[M]ola driving the Xterra. And that was it. At the stoplight out here.

"THE COURT: All right. She happened to see Dr. De[M]ola driving the Xterra?

"JUROR NO. 8: Yes. [¶] And she mentioned that in the deliberation room. When she mentioned it, several jurors said, [`]Hey, dont even say a word. Just leave it alone. Dont mention it.[] And that was it.

"THE COURT: [¶] . . . [¶] [T]his is Juror No. 7 . . . ?

"JUROR NO. 8: No, she wasnt the one who saw it, but she was the one who mentioned yesterday that we should have mentioned that to you.

"THE COURT: Okay. Who was the juror that saw Dr. De[M]ola driving the Xterra?

"JUROR NO. 8: Um, I think it was [Juror No. 5]. [¶] . . . [¶]

"THE COURT: And there was no further discussion about the description of the Xterra or what she saw, other than she just saw Dr. De[M]ola driving it?

"JUROR NO. 8: She mentioned she saw him driving it, and several of the jurors told her to stop.

"THE COURT: Okay. [¶] In general, do you feel that will affect your verdict in any fashion?

"JUROR NO. 8: I dont think so.

"THE COURT: On that note, . . . we requested quite a bit of material and evidence and stuff to be in a room. And we have the board of the Xterra and all that. We have all seen it and know what it looks like. I dont think it will make a difference.

"JUROR NO. 8: All right."¹²

12 We suspect that the court reporter may have switched the persons speaking in the last two paragraphs — that it may have been the jury foreman who said, "[W]e have the board of the Xterra," and the trial court who said, "All right."

Counsel for all parties agreed that the trial court should admonish the jury to disregard Juror No. 5s statement. Accordingly, the trial court called the jury back in and said:

"[THE COURT:] . . . Juror No. 5 . . . made a statement to the jury that she saw Dr. De[M]ola driving the Xterra; is that correct?

"JUROR NO. 5: Uh-huh.

"THE COURT: Im going to admonish the jury to disregard that statement. It is of no evidentiary consequence.

"JUROR NO. 5: Im sorry, we did. And no one spoke of it. I said it a week ago."

The trial court asked whether any of the jurors felt "that that statement in any way would affect your decision in this case?" Juror No. 7 raised her hand. All of the other jurors, however, indicated that they could disregard the statement.

With the concurrence of all counsel, the trial court then reread CALJIC No. 17.40 (Individual Opinion Required — Duty to Deliberate).

It then excused the rest of the jury and questioned Juror No. 7 about whether she could follow the admonition to disregard Juror No. 5s statement. She said she could.

b. Analysis.

Bell and DeMola contend that the trial court erred by failing to investigate the possibility that Juror No. 5 had committed misconduct.

Defendants waived this contention by failing to request such an investigation. Indeed, their counsel agreed that the trial courts only response should be to admonish the jury to disregard what Juror No. 5 had said.¹³

13 Bells counsel was participating via speaker phone. At some point, the call was dropped. As soon as the trial court realized this, however, it called him back and accurately summarized what had happened in his absence. He then agreed that an admonition was the appropriate response.

In any event, the trial court did not err. "`When a trial court is aware of possible juror misconduct, the court "must `make whatever inquiry is reasonably necessary" to resolve the matter. [Citation.] Although courts should promptly investigate allegations of juror misconduct `to nip the problem in the bud [citation], they have considerable discretion in determining how to conduct the investigation. `The courts discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry. [Citation.]" (People v. Prieto, supra, 30 Cal.4th at pp. 274, quoting People v. Hayes, supra, 21 Cal.4th at p. 1255, People v. Keenan (1988) 46 Cal.3d 478, 532, and People v. Beeler (1995) 9 Cal.4th 953, 989.)

Here, the trial court began by questioning the foreman, who said, "[I]t wasnt really an investigation. [Juror No. 5] mentioned that she saw Mr. De[M]ola driving the Xterra. And that was it." Juror No. 5 agreed that she had said "that she saw Dr. De[M]ola driving the Xterra . . . ." She expressed remorse. The trial court then asked all of the other jurors whether they could obey its admonition to disregard what Juror No. 5 had said. Ultimately, all of them indicated that they could. At that point, the trial court could reasonably conclude that no further inquiry was necessary.

Defendants argue that the trial court should have questioned Juror No. 7, since she was the one who was accusing Juror No. 5 of misconduct. The trial court, however, did question Juror No. 7. Admittedly, at that point, it was trying to determine whether she could disregard Juror No. 5s statement, not to determine what exactly that statement actually was. During the questioning, however, Juror No. 7 described the alleged misconduct as "look[ing] through the window" of the Xterra. She added, "[Juror No. 5] said she didnt do it on purpose . . . ." Thus, the trial court had no reason to suppose that further questioning of Juror No. 7 or of any of the other jurors would reveal any prejudicial misconduct.

2. Instructing the Jury to Continue to Deliberate.

DeMola and Bell also contend that, when their jury declared that it was deadlocked, the trial court erred by instructing it to continue deliberating.

a. Additional Factual and Procedural Background.

As we will discuss in more detail in part XI.A.3.a, post, on April 12, when the trial court was looking into possible misconduct by Juror No. 5, one juror suggested that Juror No. 7 may also have committed misconduct, by injecting her opinions as a mental health expert into the deliberations.

Later that same day, the jury foreman sent out another note, stating that the jury was deadlocked. The trial court called him in and questioned him. He confirmed that, in his opinion, the jury would not be able to arrive at a verdict. The trial court asked:

"THE COURT: [¶] . . . [¶] In the deliberations, in your opinion, is Juror No. 7 portraying herself as an expert in the mental health field and evaluating the evidence accordingly[?]

"JUROR NO. 8: She made one comment regarding something along those lines and everyone — most of everybody said to her, um, dont evaluate it according to what you do . . . . And that was the end of it. [¶] . . . [¶]

"THE COURT: [I]s Juror No. 7 deliberating and discussing her views with other jurors? [¶] . . . [¶]

"JUROR NO. 8: I mean, we are all sitting and deliberating and discussing things, but . . . based on what you read us, the rules, what to go by, um, shes not fully going with it, I dont think.

"THE COURT: In what way?

"JUROR NO. 8: [S]hes looking for rock solid evidence. And we knew going into this, as it was explained to us, that it was going to be circumstantial evidence. And I dont think thats good enough for her, the circumstantial evidence. . . . She wants rock solid proof of everything."

The trial court then questioned Juror No. 7. She denied that she was "using [her] expertise in this case . . . ." She said she had merely commented, based on the evidence, including DeMolas emails, that DeMola was depressed and suicidal. She confirmed that she could follow the instructions regarding circumstantial evidence and reasonable doubt. She indicated that she did not feel the prosecution had met its burden of proof.

Next, the trial court asked each juror whether, "in your individual opinion, . . . further deliberations possibly could result in a unanimous verdict." Eleven said no; one said that while further deliberations would not change his vote, he did not know whether they might change others. The foreman said the jury was split 11-1.

Over the objections of counsel for DeMola and Bell, the trial court gave the following instruction:

"It has been my experience on more than one occasion that a jury which initially reported they were unable to reach a verdict was ultimately able to arrive at verdicts as to one or more of the defendants.

"To assist you in your further deliberations Im going to further instruct you as follows: Your goals as jurors should be to reach a fair and impartial verdict, if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict, regardless of how long it takes to do so.

"It is your duty as jurors to carefully consider weighing and evaluating all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors.

"In the course of your further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. You should not hesitate to change a view once held, if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong. Fair and effective jury deliberations require a frank and forthright exchange of views.

"As I previously instructed you, each of you must decide the case for yourself and should do so only after a full and complete consideration of all the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charges, if you can do so.

"With that said, . . . Im going to ask that you further deliberate tomorrow morning . . . ."

b. Analysis.

"[Penal Code s]ection 1140 provides that a jury may be discharged without reaching a verdict if `at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree. Determining whether there is a reasonable probability of jury agreement is left to the sound discretion of the trial court. [Citation.]" (People v. Cook, supra, 39 Cal.4th at p. 615, quoting People v. Proctor (1992) 4 Cal.4th 499, 539.) "`Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived "`as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered." [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 363-364, quoting Proctor, at p. 539, quoting People v. Miller (1990) 50 Cal.3d 954, 994, quoting People v. Rodriguez (1986) 42 Cal.3d 730, 775.)

DeMola and Bell argue that the trial court could not reasonably find that the jury could agree, because 11 jurors said they could not (and the 12th was not sure). Even if the jurors say they cannot agree, however, "`the court, in the exercise of the discretion committed to it, may give such weight to this opinion as the surrounding circumstances seem to demand. [Citations.]" (Paulson v. Superior Court (1962) 58 Cal.2d 1, 8, quoting People v. Disperati (1909) 11 Cal.App. 469, 473.) "`[S]ection 1140 of the Penal Code . . . clearly commits to the trial judge, not to the jury, the determination of the question whether or not "there is no reasonable probability that the jury can agree."" (People v. Finch (1963) 213 Cal.App.2d 752, 763, quoting People v. Sullivan (1950) 101 Cal.App.2d 322, 328.) " . . . `The judge is not bound to take as final the statement of the jury that they cannot agree upon a verdict, but when such a statement is made, the court below, familiar with the nature of the evidence, and probably the temperaments of the men who compose the jury, is better qualified to say whether there is a reasonable probability of an agreement than the appellate court . . . ." (People v. Caradine (1965) 235 Cal.App.2d 45, 50, quoting People v. Greene (1893) 100 Cal. 140, 142.)

In People v. Price (1991) 1 Cal.4th 324, as here, 11 jurors said they could not reach a verdict, and the 12th was not sure. (Id. at p. 465.) The trial court nevertheless instructed them to continue deliberating. (Id. at pp. 465-466.) The Supreme Court held that this was not error: "[B]ecause the penalty trial had lasted over three weeks and the entire trial (excluding jury selection) over seven months, the trial court could reasonably determine that the jury had not deliberated sufficiently on the voluminous evidence presented to it, and that a finding of deadlock would be premature. We find no abuse of discretion in this determination." (Id. at p. 467.)

Here, the jurors had been hearing evidence for nine days. Over 300 exhibits had been admitted. The jurors had only been deliberating for four days (give or take an hour). Moreover, it appeared that the only obstacle to a verdict might be that Juror No. 7 was applying an erroneously stringent burden of proof. Thus, the trial court did not abuse its discretion by finding a reasonable possibility of agreement.

Separately and alternatively, this is one case in which we can say, beyond a reasonable doubt, that instructing the jury to continue deliberating, even if erroneous, was not prejudicial. Even an improperly coercive instruction may be held harmless when the record affirmatively indicates that its coercive effect was not realized. (People v. Barraza (1979) 23 Cal.3d 675, 684.) Here, the only holdout was Juror No. 7. Obviously, she was not coerced into agreement. Rather, two days later, she was removed for misconduct; an alternate replaced her, and the jury was instructed to resume its deliberations from the beginning. (See part XI.A.3.a, post.)

DeMola argues that the trial courts failure to declare a mistrial was prejudicial because it caused Juror No. 7 to commit misconduct. Not so. The trial court had reminded her that "[a] particular juror cant use his or her own expertise in evaluating the evidence because that individual never testified as an expert." (She had even agreed, "Thats true.") She could not possibly have understood the trial courts instruction to continue to deliberate as authorizing her to do so in a manner that violated its other instructions.

We therefore conclude that, even assuming the trial court erred, the error was harmless.

3. The Removal of Juror No. 7 for Misconduct.

Next, DeMola and Bell contend that the trial court erred by removing Juror No. 7 for misconduct.

a. Additional Factual and Procedural Background.

On April 12, when the trial court questioned the jury foreman about possible misconduct by Juror No. 5, the foreman raised "another issue."

"JUROR NO. 8: Juror [No.] 7 . . . still has some doubts on her decision, and . . . its frustrating some of the other jurors. . . . She says she needs a little bit more information and things. And she needs to go through some of the evidence a little bit more with a fine[-]tooth comb before she comes to the conclusion.

"THE COURT: Thats part of the deliberation.

"JUROR NO. 8: Exactly. But a few of the jurors are getting a little frustrated."

Later that day, the trial court also questioned Juror No. 7 about her ability to disregard Juror No. 5s comments. Juror No. 7 then volunteered:

"[JUROR NO. 7:] [W]hile we are in the — in the jury room . . . , it seems like — its a group that senses [sic] to whatever I say. They jump on me; they pounce on me. All of a sudden, Im not allowed to say — the foreman has . . . instructed the jurors to calm down and to let me say what I have to say . . . .

"THE COURT: Uh-huh.

"JUROR NO. 7: It seems like . . . they are saying — . . . since Im a mental health worker and some of the stuff I looked at — you have no right — I have to do that or ignore some of the things.

"THE COURT: Well, as a juror in this case, obviously you have the right to voice your opinion and discuss the evidence with fellow jurors. [¶] . . . [¶] . . . And we are entitled to the individual opinion of each juror, including you. So I read the instruction again, 17.40, and hopefully that will assist you and the other jurors."

Meanwhile, Juror No. 12 asked to be heard. When the trial court questioned him (or her), he (or she) said:

"JUROR NO. 12: Another problem that came up yesterday . . . , when this all blew up, um, the profession of Juror No. 7 is in the mental health field.

"She came up with a very strong opinion as to a clinical evaluation . . . of what the defendants may have been suffering from, and it is also swaying the opinion. . . .

"And it hit me very strongly that she is . . . making a medical decision to their clinical, um, depression . . . . Suicidal. . . .

"It is not part of the trial. It was not brought up in the trial. . . . [¶] . . . [¶] ". . . I just wanted you to know that emotionally that is very upsetting to the rest of us . . . . We dont want a hung jury any more than anyone else does. We want to make a decision.

"We keep asking, then give us a reason why you feel the way you do. The car, her mental evaluation of the case . . . . She cant give us any answer other than those two things, and they are not part of it."

The trial court asked Juror No. 12 to continue to deliberate.

On Wednesday, April 13, the jury continued to deliberate all day. On Thursday, April 14, after deliberating until almost 3:00 p.m., it sent out two notes. In one, Juror No. 1 complained that Juror No. 7 had presented an expert evaluation to the jury. In the other, Juror No. 9 asked that Juror No. 7 "be excused for misconduct" because she was "basing her conclusions . . . on her professional opinions."

Once again, the trial court questioned the jury foreman. He said that Juror No. 7 had gone home, consulted a dictionary, taken notes, and returned with her notes. She had then made a presentation to the rest of the jurors in which she asserted that one of the defendants was depressed. She said that this information was "from her profession." She used words that the foreman did not know.

Next, it questioned Juror No. 7. She admitted copying a dictionary definition of depression and sharing it with the other jurors. However, she insisted, "I wasnt trying to be an expert. [T]his is not expert stuff . . . ."

The trial court then questioned Juror No. 9, who said that Juror No. 7 had made a presentation to the other jurors about a "mental disorder" in which she had "present[ed] herself as a mental health expert . . . ." "[A]s she put it, this is her job . . . . This is what she does five days a week." Juror No. 9 also said that Juror No. 7 had consulted a dictionary.

The trial court also questioned Juror No. 1, who was a registered nurse. According to her, Juror No. 7 had presented a diagram of "terms of depression," including terms with which Juror No. 1 herself was not familiar. When asked where she had gotten that information, Juror No. 7 said, "I got it from . . . my knowledge. Im allowed to do that." Later, however, she admitted that she had used a notebook that she had brought from home. She also said she had accessed all of "her references," "her data that she has at home that she uses for her field."

Finally, the court questioned each of the remaining jurors separately. In general, they confirmed what Jurors No. 1, No. 8, and No. 9 had said. One of them added that Juror No. 7 had admitted "trying to diagnose one of the defendants." Another said that she had used unfamiliar "psychological terms and definitions . . . ."

The trial court copied and reviewed the notebook pages that Juror No. 7 had brought from home. Over the objections of counsel for both DeMola and Bell, it excused Juror No. 7.

b. Analysis.

The trial court can discharge a juror who is "unable to perform his or her duty . . . ." (Pen. Code, § 1089.) "[A] jurors serious and wilful misconduct is good cause to believe that the juror will not be able to perform his or her duty." (People v. Daniels (1991) 52 Cal.3d 815, 864.) "In determining whether juror misconduct occurred, `[w]e accept the trial courts credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.]" (People v. Schmeck (2005) 37 Cal.4th 240, 294, quoting People v. Nesler (1997) 16 Cal.4th 561, 582.)

"It is well established that a jurors reference to a dictionary for the definition of a term used in an instruction constitutes misconduct. [Citations.]" (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 323, and see cases cited.) It is less clear whether a juror may look a nonlegal term that has not been used in the instructions up in a dictionary. Here, however, the jurors had been instructed, "[Y]ou must not on your own . . . consult reference works or persons for additional information" (CALJIC No. 0.50.) The trial court had even elaborated on the standard instruction, telling DeMola and Bells jury: "Please do not do any independent research, either on the internet or looking at legal books . . . or looking at a dictionary . . . . Because if you do that, you will be in violation of your oath, and you will be excused as a juror in this case." Thus, Juror No. 7 did, at a minimum, commit misconduct by violating this instruction.

She also committed misconduct by acting as an unsworn expert witness. "`[I]t is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a jurors own claim to expertise or specialized knowledge of a matter at issue is misconduct. [Citation.]" (In re Lucas (2004) 33 Cal.4th 682, 696, italics omitted, quoting In re Malone (1996) 12 Cal.4th 935, 963.) There was ample evidence that Juror No. 7 was not just sharing her life experiences; she was asking the other jurors to rely on her expertise and specialized knowledge.

Defendants rely on cases finding that misconduct occurred but holding that the misconduct was not prejudicial. (People v. Karis (1988) 46 Cal.3d 612, 642-645; People v. Marshall (1990) 50 Cal.3d 907, 949-952; People v. Cabrera (1991) 230 Cal.App.3d 300, 303-306; People v. Harper (1986) 186 Cal.App.3d 1420, 1426-1430.) These are inapposite. "[W]hen a trial court learns during deliberations of a jury-room problem which, if unattended, might later require the granting of a mistrial or new trial motion, the court may and should intervene promptly to nip the problem in the bud. The law is clear, for example, that the court must investigate reports of juror misconduct to determine whether cause exists to replace an offending juror with a substitute." (People v. Keenan, supra, 46 Cal.3d at p. 532.)

In each of the cases defendants cite, the misconduct issue came up in the context of a motion for new trial (or, in Marshall, a habeas petition). At that point, the trial court no longer had the option of "nip[ping] the problem in the bud" by discharging the offending juror. Here, Juror No. 7 has already been admonished not to inject her expertise into the deliberations. Nevertheless, she not only did so again, but did so even more egregiously. Even assuming her misconduct had not been prejudicial yet, the trial court could reasonably find that, if she remained on the jury, she was likely to indulge in further misconduct. Her serious and willful misconduct was proof that she simply could not follow the trial courts instructions.

We therefore conclude that the trial court did not abuse its discretion by discharging Juror No. 7.

4. Cell Phone Use During Deliberations.

DeMola and Bell contend that the trial court erred by denying their motion for a new trial to the extent that it was based on a jurors use of a cell phone during deliberations.

a. Additional Factual and Procedural Background.

DeMola filed a motion for new trial, based in part on juror misconduct. The instances of misconduct she asserted at that point, however, did not include using a cell phone.

On the day of the hearing on the motion, DeMolas counsel lodged a declaration he had received from former Juror No. 7.¹⁴ She stated, among other things: " . . . I witnessed jurors using their cell phones to play games while deliberating, and a phone call was made from the jury room while the witness transcripts were being reread. [Juror No. 5] had her cell phone activated to receive calls about her grand fathers [sic] condition that was in the hospital. The foreman intimated that she had permission to do so. Juror [No.] 10 . . . was confronted with using the cell phone, playing the games on his cell while in deliberations as well as in the courtroom while the judge and attorneys were in chambers . . . . The juror used profanity while denying that he had done any of the before mentioned actions."

14 The declaration is not in the record. DeMolas appellate counsel has attached what is purportedly a copy of the declaration to DeMolas opening brief. However, this is not an appropriate way to designate or to augment the record. (See Cal. Rules of Court, rule 8.204(d).)
On the other hand, the People do not dispute that the attachment is a true copy of the declaration. Moreover, even though the copy is unsworn, they do not dispute the fact (which the trial court also noted) that at some point, Juror No. 7 signed the declaration under penalty of perjury.
We therefore take judicial notice that a sworn version of the attachment was lodged below.

Accordingly, DeMolas counsel argued: "One juror, according to [Juror No. 7s] declaration, was using a cell phone during deliberations . . . , when readback testimony was going on. [¶] . . . And Im not going to say that that is necessarily jury misconduct, because I dont know what they were talking about. [¶] But . . . I think at the very least it allows us to be able to contact this juror to see whether he had discussions about what was going on in the deliberation room, which would clearly be misconduct, during the phone call. And if he didnt, then theres no misconduct."

Bells counsel joined in both the motion for new trial and the request to contact jurors.

The trial court denied both the motion and the request.

b. Analysis.

The Supreme Court has "disapprov[ed] . . . of allowing a cellular telephone into the jury deliberation room." (People v. Fauber (1992) 2 Cal.4th 792, 837.) However, it has also held that the use of a cell phone during deliberations, without more, does not constitute misconduct. There must be some additional showing, such as that the jurors had been instructed not to use a cell phone, that they used the cell phone to discuss the case, or that they were distracted by the cell phone. (Id. at pp. 837-838.) Juror No. 7s declaration did not make such a showing. Indeed, DeMolas counsel conceded, " . . . Im not going to say that that is necessarily jury misconduct, because I dont know what they were talking about." Accordingly, the trial court did not err by denying the motion for new trial.

DeMola therefore argues that the trial court erred by refusing to allow her counsel to contact the jurors. Once the jurors have been discharged, however, "they have an absolute right to discuss or not to discuss the deliberation or verdict with anyone." (Code Civ. Proc., § 206, subd. (a); see also id., subd. (c).) "[T]he defendant[] or his or her attorney . . . may discuss the jury deliberation or verdict with a member of the jury, provided that the juror consents . . . ." (Id., subd. (b).) The trial court does have "the inherent judicial power to limit the parties ability to contact jurors following completion of the trial." (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1094, fn. omitted.) Here, however, the trial court had not made any no-contact or other limiting order. Thus, technically, defense counsel did not even need the trial courts permission to contact the jurors.

We may assume, without deciding, that the request could be construed as a petition for jurors personal identifying information pursuant to Code of Civil Procedure section 237. Even if so, defense counsel had to make "a prima facie showing of good cause . . . ." (Code Civ. Proc., § 237, subd. (b).) While this arguably does not require a prima facie showing that misconduct actually occurred, it does require, at a minimum, some showing that misconduct possibly or probably occurred. (See People v. Granish (1996) 41 Cal.App.4th 1117, 1126-1127.) We review an order granting or denying access to jurors personal identifying information under the abuse of discretion standard. (See People v. Jones (1998) 17 Cal.4th 279, 317.)

As discussed earlier (see part XI.A.3, ante), during the deliberations, the trial court had discharged Juror No. 7 and replaced her with an alternate. Moreover, it had duly instructed the reconstituted jury to "set aside and disregard all past deliberations and begin deliberations anew." (CALJIC No. 17.51.) Juror No. 7 testified to a single phone call made from the jury room during a readback. This is insufficient reason to suppose that any phone calls were made after she was discharged (especially as there were no further readbacks). Moreover, because there was no evidence that the phone call actually constituted misconduct, and because we must presume that the jurors obeyed the instruction to begin their deliberations "anew," there was insufficient reason to suppose that the phone call somehow tainted the further deliberations. Even assuming that reasonable minds could differ, the trial court had discretion to find an insufficient showing of good cause.

Separately and alternatively, we also note that granting the request would have required a continuance of both the hearing on the motion for new trial and the sentencing hearing. To obtain a continuance, DeMolas counsel would have had to show, among other things, that he had been diligent. (People v. Roldan, supra, 35 Cal.4th at p. 670.) Juror No. 7s declaration, however, was dated April 26, 2005; the hearing on the motion for new trial was held on July 20, 2005. Counsel never explained why he waited nearly three months before seeking leave to contact the other jurors. The trial court properly could deny the request for this reason alone. (People v. Duran (1996) 50 Cal.App.4th 103, 122-123.)

B. Issues Concerning Longs Jury.

Long contends that the trial court erred by failing to adequately investigate possible misconduct by Juror No. 9. Anticipating the response that his trial counsel waived this issue, he also contends that any such waiver constituted ineffective assistance.

1. Additional Factual and Procedural Background.

After both sides rested, Juror No. 12 asked to speak to the trial court. He (or she) indicated that Juror No. 9 had admitted reading the newspaper: "[H]e said . . . its in the paper every day. Ive read it, and believe me, we know — you really know whats going on. You know more. Something like that." Juror No. 12 denied that Juror No. 9s statements would affect her (or him) in any way.

The trial court therefore questioned Juror No. 9:

"[THE COURT:] [W]e received some information . . . that you had been reading some articles in the newspaper about the case.

"JUROR NO. 9: I couldnt help it, Judge. It was in the Press-Enterprise. It was there. It just jumped out.

"THE COURT: Did you read anything about the case?

"JUROR NO. 9: No. The photographs drew my attention, and then I just had to put it down.

"THE COURT: All right. So when you opened the paper, you saw some photographs?

"JUROR NO. 9: Yes. And I — the name jumped out, and I just had to stop reading.

"THE COURT: Did you read any of the content of the article?

"JUROR NO. 9: No. No."

Longs counsel then questioned Juror No. 9 further:

"[LONGS COUNSEL]: It didnt influence

"JUROR NO. 9: Not one iota.

"[LONGS COUNSEL]: And other than one of the other jurors, is there anyone else you talked to about that issue?

"JUROR NO. 9: I dont think so, no."

After Juror No. 9 left, Longs counsel stated: "Your Honor, if he had indicated that he had actually read the articles, discussed it with several jurors, then Id truly be concerned. . . . So I dont have any objection to Juror No. 9 staying on the jury panel." The prosecutor agreed.

Accordingly, the trial court did not conduct any further inquiry. At the end of the day, however, it told the jury:

"Another admonishment. Very important. And I cant stress this enough. Please do not discuss this case with anyone except a fellow juror, and only when all twelve jurors are deliberating.

"No. 2, do not read anything in the newspaper about this case. [¶] And I think probably it would be the best course of action, dont read the paper. . . . But please do not read anything about this case in the paper."

2. Request for Judicial Notice.

Long has asked us to take judicial notice of two Press-Enterprise articles, dated January 24, 2002, and March 6, 2005. We deny the request. "Reviewing courts generally do not take judicial notice of evidence not presented to the trial court." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Moreover, the articles could not have been the ones that Juror No. 9 read during the trial. Longs jury was not sworn until March 14, 2005. "`[J]udicial notice . . . cannot be taken of any matter that is irrelevant . . . . [Citation.]" (People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6.)

3. Analysis.

Longs trial counsel waived this contention — in fact, he affirmatively invited the asserted error — by stating that he had no objection to Juror No. 9 remaining on the jury panel. (See People v. Stanley (2006) 39 Cal.4th 913, 950.)

Long therefore argues that his trial counsel rendered ineffective assistance in this respect. Longs counsel, however, could have had any number of sound tactical reasons for not objecting to Juror No. 9. For example, he could have some reason to believe that Juror No. 9 was favoring the defense. Alternatively, he could have known that the newspaper articles involved were innocuous or even favorable to the defense. Thus, we cannot say that this constituted ineffective assistance.

Separately and alternatively, the trial court did not err by failing to investigate further. Long argues that there was a conflict between the statements of Juror No. 12 and Juror No. 9, which the trial court erroneously failed to resolve. Inasmuch as they were the only two parties to their conversation, however, the only way the trial court could resolve the conflict was by making a credibility determination. "[N]ormally `[w]e accept the trial courts credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.]" (People v. Stanley, supra, 39 Cal.4th at p. 951, quoting People v. Nesler, supra, 16 Cal.4th at p. 582.)

Moreover, the trial court, in its discretion, properly could conclude that it did not even need to resolve the conflict. It could assume (without necessarily finding) that Juror No. 9 had actually read more than he was willing to admit. Nevertheless, he was plainly aware that he had made a mistake, and he expressed remorse. When asked if he had been influenced, he answered, "Not one iota." Juror No. 12 likewise denied being influenced. The trial court could therefore find that the presumption of prejudice had been rebutted.

Long argues that, according to Juror No. 12, Juror No. 9 said he had learned "more" about the case from the newspaper. Juror No. 12s remarks, however, while ambiguous, appear to mean the exact opposite. Supposedly, Juror No. 9 said, "[W]e know — you really know whats going on. You know more." It appears that both "we" and "you" referred to the jurors; Juror No. 9 meant that the jurors knew more of what was going on than people who read the newspaper did. Had "you" referred to people who read the newspaper, Juror No. 9 would not have said "we" first. The trial court, which was able to hear and see Juror No. 12, was in a better position to decide which was meant.

We therefore conclude that the trial courts failure to continue to investigate the apparent misconduct by Juror No. 9 was not reversible error.

XII

CRUEL AND UNUSUAL PUNISHMENT

DeMola contends that, because she was 16 years old when the crime was committed,¹⁵ sentencing her to life without parole — without a fitness hearing — constitutes cruel and unusual punishment and violates due process, to boot. This contention, if meritorious, arguably might also benefit Bell and Long (although we note that they were both 17, and that Long was sentenced to life with the possibility of parole).

15 All further references in this part to age (including minority or adulthood in general) are intended to refer to age at the time of the alleged commission of the relevant crime.

In People v. Guinn (1994) 28 Cal.App.4th 1130, this court held that sentencing a 17 year old to life without the possibility of parole for special-circumstances murder was not cruel and unusual punishment. (Id. at pp. 1145-1147.) We noted: "Defendant Guinn argues that imposition of a sentence of LWOP on a 17-year-old is extreme. While we agree that the punishment is very severe, the People of the State of California in enacting the provision have made a legislative choice that some 16- and 17-year-olds, who are tried as adults, and who commit the adult crime of special circumstance murder, are presumptively to be punished with LWOP. We are unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment." (Id. at p. 1147; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 17 [sentencing a 14 year old to 50 years to life was not cruel and unusual punishment]; People v. Ortiz (1997) 57 Cal.App.4th 480, 486-487 [sentencing a 14 year old to 26 years to life was not cruel and unusual punishment]; Harris v. Wright (9th Cir. 1996) 93 F.3d 581, 583-584 [sentencing a 15 year old to life without parole was not cruel and unusual punishment].) Sad to say, youthful offenders have become no less vicious since 1994 — indeed, the defendants in this case are poster children for this trend.

Admittedly, in Guinn, the defendant had been found unfit for trial in juvenile court. (People v. Guinn, supra, 28 Cal.App.4th at p. 1135.) DeMola argues that "[a]t a minimum, there should have been an evidentiary hearing" concerning the propriety of the penalty. However, there was such a hearing — it was called the "trial." If, after the trial court heard all of the evidence, there was any doubt that DeMola deserved life without parole, her counsel could have raised cruel and unusual punishment at the sentencing hearing. There was not. Hence, he did not. Neither state nor federal cruel-and-unusual-punishment principles require that the propriety of punishing a minor as an adult be determined at the beginning of the case, rather than at the end. And DeMola does not even try to argue that the penalty meted out to her was disproportionate, either to her, as the offender, or to her offense.¹⁶

16 The People argue that DeMolas trial counsel waived her present contention by failing to raise it below. Ordinarily, a cruel and unusual punishment claim is waived if not raised at trial, because it demands "a fact-bound inquiry." (People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8; accord, People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Here, however, DeMola is essentially arguing that, as a matter of law, sentencing a minor to life without parole always constitutes cruel and unusual punishment. "[T]he rule that on appeal a litigant may not argue theories for the first time does not apply to pure questions of law. [Citation.]" (Carman v. Alvord (1982) 31 Cal.3d 318, 324; accord, People v. Randle (2005) 35 Cal.4th 987, 1001-1002.)
In any event, as the People admit, even if we did hold that DeMolas counsel waived the issue, we could still reach it under the rubric of ineffective assistance of counsel. (People v. Norman (2003) 109 Cal.App.4th 221, 230-231.)

DeMola also argues that the lack of a fitness hearing violated due process. As she concedes, however, the California Supreme Court has held that allowing the prosecutor to try a minor as an adult without a fitness hearing, pursuant to Welfare and Institutions Code section 707, subdivision (d), does not violate due process. (Manduley v. Superior Court, supra, 27 Cal.4th at pp. 562-567.) She attempts to distinguish Manduley based on "the circumstances of this case and the severity of the sentence . . . ." The reasoning in Manduley, however, had nothing to do with the lenity or severity of the sentence, and we perceive no other distinguishing circumstances.

DeMola relies on Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183, 161 L.Ed.2d 1], which held subjecting a minor to the death penalty constitutes cruel and unusual punishment. The court relied on "`the evolving standards of decency that mark the progress of a maturing society" (id. at p. 561, quoting Trop v. Dulles (1958) 356 U.S. 86, 101 [78 S.Ct. 590, 2 L.Ed.2d 630] [plur. opn. of Warren, C.J.]) and a "national consensus against the death penalty for juveniles . . . ." (Simmons, at p. 564.)

However, "[p]roportionality review is one of several respects in which [the Supreme Court has] held that `death is different, and ha[s] imposed protections that the Constitution nowhere else provides. [Citations.]" (Harmelin v. Michigan (1991) 501 U.S. 957, 994 [111 S.Ct. 2680, 115 L.Ed.2d 836] [lead opn. of Scalia, J.]; see also Ring v. Arizona (2002) 536 U.S. 584, 606 [122 S.Ct. 2428, 153 L.Ed.2d 556] ["`death is different"].) Moreover, DeMola has not demonstrated that there are any "evolving standards" rejecting, or any "national consensus" against, terms of life without parole for minors. (See Harris v. Wright, supra, 93 F.3d at pp. 583-584 [as of 1996, at least 21 states subjected 15 year olds to mandatory sentences of life without parole; "[w]hatever degree of consensus might be necessary before we could overturn the considered judgment of a state legislature, this doesnt come close"].)

DeMola does claim that there is an international consensus against sentencing minors to life without parole. Simmons, however, regarded international opinion as "instructive" but not "controlling." (Roper v. Simmons, supra, 543 U.S. at pp. 554, 575.) In any event, one of the sources of international law that DeMola cites indicates that a substantial number of countries, albeit a minority, still allow for the possibility of imprisoning a minor for life without parole.¹⁷ (Human Rights Advocates, The Death Penalty and Life Imprisonment Without the Possibility of Release for Youth Offenders Who Were Under the Age of 18 at the Time of the Offense (2005) at pp. 9-15, available at <http://www.humanrightsadvocates.org/images/Juvenile Sentences.doc>, as of May 14, 2007.) Thus, we find nothing in Simmons that requires us to depart from our own precedent in Guinn.

17 These are Antigua and Barbuda, Bangladesh, Burkina Faso, Dominica, Israel, Kenya, the Netherlands, Saint Vincent and the Grenadines, the Solomon Islands, South Africa, Sri Lanka, Tanzania, parts of Australia, and possibly Brunei.

We conclude that defendants sentences have not been shown to constitute cruel and unusual punishment.

XIII

RESTITUTION ISSUES

DeMola and Bell contend that the trial court erred by imposing a parole revocation restitution fine on them.

Both DeMola and Bell were sentenced to life in prison without parole. The trial court ordered them to pay direct victim restitution, in an amount to be determined. (Pen. Code, § 1202.4, subd. (f).) It imposed a $10,000 restitution fine. (Id., subd. (b).) It also imposed, and then suspended, a $10,000 parole revocation restitution fine. (Pen. Code, § 1202.45.)

As the People concede, the parole revocation fines were erroneous, because DeMola and Bells sentences did not "include[] a period of parole . . . ." (Pen. Code, § 1202.45; see People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick, supra, 114 Cal.App.4th at p. 687; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182.) We will modify the judgments accordingly.

In a footnote, DeMola also argues that the Department of Corrections and Rehabilitation (Department) is seeking to collect an improper amount of restitution from her — $70,000, rather than $10,000. She has requested judicial notice of a Department form indicating that 20 percent of her inmate wages and trust account deposits, up to $70,000, are to be deducted and credited against a "direct order" for restitution. We hereby deny the request, because it concerns matters occurring after the filing of the notice of appeal. This issue should be presented to the trial court in the first instance and only after that (if at all) to an appellate court.

We also note, however, that even if we were to take the requested judicial notice, the form indicates that the $70,000 represents direct victim restitution. By contrast, the $10,000 represented a restitution fine. The trial court was required to impose both. (Pen. Code, § 1202.4, subd. (a)(3).) Thus, DeMola has not shown that the amount of the fine was incorrect.

XIV

DISPOSITION

The judgments against DeMola and Bell are modified by striking their parole revocation restitution fines and, as so modified, are affirmed. The judgment against Long is affirmed.

We concur:

RAMIREZ, P.J.

HOLLENHORST, J.