People v. Holmes, McClain & Newborn

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
KARL HOLMES, HERBERT McCLAIN and LORENZO
NEWBORN,
Defendants and Appellants.

S058734

Los Angeles County Superior Court
BA092268

January 31, 2022

Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Groban, Jenkins,
and O’Rourke* concurred.

Justice Kruger filed a concurring opinion.

Justice Liu filed a dissenting opinion.

*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
S058734

Opinion of the Court by Corrigan, J.

On Halloween night in 1993, a group of young teenagers
walking home from a party were mistaken for gang members
and became the target of gunfire. Three were killed. Defendants
Karl Holmes, Herbert McClain, and Lorenzo Newborn1 were
each convicted of three counts of murder, five counts of
attempted murder, and one count of conspiracy to commit
murder.2 Special circumstances for lying in wait and multiple
murder were found true as to each murder count.3 The jury
found that Holmes was armed with a firearm in committing the
offenses4 but found firearm allegations not true as to the other
defendants. McClain was convicted of an additional attempted
murder, with personal use of a firearm, based on an earlier
incident.5
After the jury failed to reach a penalty verdict, that phase

1
Two codefendants originally included in the charges,
Aurelius Bailey and Solomon Bowen, were tried separately and
are not parties to this appeal.
2
Penal Code sections 187, subdivision (a), 664, and 182,
subdivision (a). Further undesignated statutory references are
to the Penal Code.
3
Section 190.2, subdivision (a)(3) and (15).
4
Section 12022, subdivision (a)(1).
5
Sections 187, subdivision (a), 664, and 12022.5,
subdivision (a).

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Opinion of the Court by Corrigan, J.

was retried, and death verdicts were returned against all
defendants. In addition, the court imposed life sentences on all
attempted murder counts, 25-year-to-life sentences on the
conspiracy counts, and five-year sentences on the firearm
enhancements. 6 We affirm the judgment in its entirety.
I. BACKGROUND
A. Guilt Phase
1. October 28 Attempted Murder of Robert Price
(McClain Only)
McClain was a member of the Bloods gang, P-9. Robert
Price was a member of the rival gang, Raymond Avenue Crips.
On October 28, 1993, McClain encountered Price, as he left the
Community Arms apartment complex. The men had seen each
other before but never spoken. McClain asked Price for a
cigarette. When Price gave him one, McClain responded, “Thank
you, Blood,” then shot Price in the face with a .380-caliber
handgun. As Price tried to flee, McClain fired several shots,
hitting Price twice in the back.
Price survived and was interviewed at the hospital where
he refused to identify his assailant. He later identified McClain
from a six-person photo lineup and again during both grand jury
and trial testimony. Although warned by McClain not to testify,
Price did so in exchange for a promise to relocate his family.

6
All of these sentences were ordered to run consecutively
except that the conspiracy sentences were stayed pursuant to
section 654.

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2. October 31 Shootings
a. Shooting of Fernando Hodges and Hospital
Gathering
Three evenings later, on October 31, 1993, P-9 gang
member Fernando Hodges was shot at the Community Arms
basketball court, and taken to Huntington Memorial Hospital,
where he died. Police believed one of the Raymond Avenue Crips
was responsible.
Holmes and Solomon Bowen joined a large crowd of
Hodges’s family and friends at the hospital. Around 20 to 30
people attired in hooded sweatshirts and baggy clothing
gathered outside the emergency room but did not enter the
hospital. A hospital security officer believed they were gang
members. After an older man at the center of the group seemed
to give “some direction or guidance, possibly orders,” the group
left.
b. Activities Before the Wilson Street Shootings
After Bowen left the hospital, he and Newborn went to
Willie McFee’s house. They were armed and looking for
Raymond Avenue Crips (Crips) gang member Dion Nelson,
known as “Crazy D.” Newborn cried and said his close friend,
Hodges, had been killed. McFee declined to say where Crazy D
lived. Newborn and Bowen left, joining several men running
toward some railroad tracks. McFee called Crazy D to warn him.
Less than five minutes later, McFee heard multiple
gunshots from near the tracks. A second series of gunshots,
apparently from a different weapon, came from near Crazy D’s
house. Shots were also fired toward McFee’s home. A bullet
struck his air conditioning unit and two shell casings were found
nearby.

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c. Shootings on Wilson Street
Earlier that night, 14-year-old Reggie Crawford, 13-year-
old Edgar Evans, and 13-year-old Stephen Coats attended a
Halloween birthday party in Pasadena. Around 10:00 p.m., they
left with Coats’s brother, Kenneth, and seven other boys.7 As
they walked to the Coats home, a car carrying four or five
Hispanic men sped by and turned from North Wilson Street
(hereafter Wilson Street) onto Villa. Immediately afterward,
four or five cars “packed full” of Black men drove down Villa
toward Wilson Street. These men displayed P-9 gang signs and
swerved near the curb as they passed by. One witness said three
of these cars were dark-colored compacts, and another recalled
that one was tan or grey. Holmes owned a grey Ford Tempo.
About three minutes later, three boys left the group of
departing party goers. Crawford, Evans, and the Coats brothers
continued walking down Wilson Street with Lawrence A., Lloyd
S., A.A., and A.P. As they walked, Stephen and Kenneth’s
mother, Deborah Bush, drove by and offered her sons a ride
home, but they declined. Stephen joked that Bush drove so
slowly he could get home sooner on foot. As they continued on,
Stephen, Crawford, and A.A. sang a song called “Gangster
Lean.” When the song ended, Kenneth heard a deep male voice
say, “Now, Blood.”
Shots erupted. Several witnesses described what
happened. Lloyd heard a single boom followed by approximately
20 gunshots and saw blue sparks pass by his feet. Initially he
thought the noise and sparks came from “a pack of firecrackers.”

7
To avoid confusion, we refer to the Coats brothers by their
first names.

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He and A.A hid behind a brick barbeque. A.A. had been shot in
the hand. Lawrence also hid when he heard the gunshots. When
the firing stopped, he emerged and called out to his friends. No
one responded, but a figure stood nearby. Gunfire resumed.
Lawrence retreated to his hiding spot but was shot in the leg as
he ran.
Kenneth also initially thought the gunshots were
firecrackers. He and his friends kept walking until they noticed
Evans holding his stomach. Evans cried, “Mama,” and began
crawling away. Stephen then pushed Kenneth away and said,
“I’m hit.” As he tried to hide, Kenneth saw the outline of two
figures. One was taller and heavier and wore his hair in braids.
The figures ran toward Orange Grove.
The three boys who had split from the group earlier ran
back to their friends when the firing stopped. Crawford and
Stephen lay unmoving. Kenneth screamed, “They shot my
brother!” and “Let me to him.” Evans lay on some stairs, still
calling for his mother. A.P. sat in a driveway, shot in the leg.
Lloyd knocked on a nearby door and asked to use the
phone. He called his mother while the homeowner called police.
Bush had heard the shots as she pulled into her driveway and
ran back down the street toward her sons. When she arrived at
the scene, she found two boys on the ground. Crawford had no
pulse. Bush saw that her son Stephen “had a bullet in his head
and . . . was already gone.” She never saw Evans. Kenneth ran
up to her, crying “I want my brother. Please don’t let this be my
brother.” Bush’s daughter arrived and covered Stephen’s body
with a jacket. Paramedics and police arrived shortly thereafter.

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Stephen sustained multiple gunshot wounds. Crawford
was struck by three to five rounds and died from a shot to his
chest. Evans died from a similar wound.
d. Eyewitnesses
Gabriel Pina and Lillian Gonzales were walking their dog
around 10:00 p.m. when four cars sped past and turned out of
sight. The couple later saw most of the cars parked on a different
street with a large group of people gathered nearby. The lead
car reversed down the street toward them, stopped, then drove
back up the street again. Pina identified the lead driver as
McClain. A few minutes later, the couple heard gunshots. A
gunman in a trench coat ran from Wilson Street and got into a
car. Pina identified the fleeing man as Holmes.
Jessica Ramirez, who lived near Wilson Street, saw two
stopped cars and a group of Black men. Shortly thereafter, she
heard what she thought were fireworks or gunshots.
e. Ballistics Evidence
Multiple nine-millimeter and .38- or .357-caliber shell
casings and fragments, along with live .38-caliber rounds, were
recovered from locations on Wilson Street. Expended nine-
millimeter casings and a live .38-caliber round were also
recovered from North Pasadena Avenue (Pasadena Avenue)
near McFee’s house. The live round found on Pasadena Avenue
and the three live rounds collected on Wilson Street were .38-
special wad cutter bullets made by PMC Company. Almost all of
the nine-millimeter casings at both locations were fired from the
same weapon. The bullets recovered from the bodies of Crawford
and Stephen Coats were both .38- or .357-caliber, but they had
been fired from different weapons.

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3. Conduct After the Shootings
a. Holmes
In December 1993, Derrick Tate met Holmes while
visiting a friend, Terranius “T” Pitts. Holmes wore a P-9 hat and
talked about the Halloween shootings saying they were in
retaliation for the Crips’ killing of Hodges. He described hiding
in bushes, jumping out, yelling “trick-or-treat,” and opening fire
on a group. He claimed he planned to get a hat made that said
“trick-or-treat.” Holmes said McClain was not involved in the
shootings. According to Tate, McClain had suggested he and
Tate leave California together. McClain was also considering
“turn[ing] himself in” because “[h]e was tired of running.”
Tate revealed this information while incarcerated on a
joyriding charge, ultimately serving time for that offense. He
was given no reward money, but his food and lodging expenses
were paid during the week of his testimony. Tate had previously
suffered three or four felony convictions outside California.
Tate was frightened to appear in court because he heard
that a witness had been killed. A few weeks earlier, Tate’s
mother and girlfriend received visits from people looking for
him. Someone phoned to warn his mother that Tate “had better
not show up in court.” The presence of Pitts’s girlfriend made
him nervous, and she was excluded from the courtroom during
his testimony.
b. McClain
A day or two after the shootings, McClain told Mario
Stevens that he and others had “put in some work” on some
Crips on Wilson Street.
McClain visited his cousin, James Carpenter, shortly after
the shootings. When Carpenter was interviewed in December

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after his arrest for robbery, he said McClain spoke about
shooting three Crips in retaliation for the murder of Hodges.
McClain had bragged, “Boom boom pow pow pow, I can still hear
the noise.” During this visit, McClain and the others learned
that the shooting victims had been children, not Crips. McClain
then cut his hair and made immediate plans to leave town. At
trial, Carpenter denied overhearing any conversation about the
Halloween shooting. He did testify that McClain sold a .38-
caliber gun to another cousin, Michael Thompson, who was later
arrested in possession of it.
Troy Welcome corroborated a number of Carpenter’s
statements. Welcome saw McClain in Tulare on November 2,
1993, when McClain got into Welcome’s car and placed a gun on
his lap. McClain hinted, by singing along with a popular song,
that the gun had been used in a shooting. He sang the same song
at a park later that weekend. McClain told Welcome he was “on
the run.”
McClain was on parole but stopped reporting for
appointments after October 25, 1993. Flying from Ontario,
California to Memphis, Tennessee on November 7, he told a
fellow passenger that he was traveling under an assumed
identity. He said he did not fly out of Los Angeles because he
believed there was additional police scrutiny there.
c. Newborn
Holmes’s cousin DeSean8 testified for the prosecution
against Newborn. After DeSean was arrested in 1995 for
burglarizing McFee’s house, he and Newborn were housed in the

8
To avoid confusion with defendant Holmes, we refer to
DeSean Holmes by his first name.

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Wayside Jail. Newborn told DeSean that he went to McFee’s
house on Halloween 1993 and “got into it” with some people
there. Newborn said he shot at McFee’s house from across the
street using a Glock nine-millimeter handgun.
Newborn also described the Wilson Street shooting. That
night, he was riding around with people who said they were
shooting Crips. Newborn insisted the shooting was not his fault.
After they had circled the block once, a fellow passenger said,
“those are the Crips right there,” and shooting broke out.
Newborn hoped to use a girl as an alibi, but he could not get in
touch with her.
DeSean was a reluctant witness because his mother had
been threatened. Newborn had also told DeSean directly that, if
he ever got out of custody, he would “smash everybody that was
on his list.” DeSean assumed he was among them.
4. Defense Evidence
Holmes, McClain, and Newborn each put on a defense.
Holmes presented evidence that on Halloween he was
home with his wife and infant son at 6:30 p.m., left to go to the
hospital after learning of the Hodges shooting, and was home by
10:00 p.m.
McClain testified that he had turned himself in and denied
any involvement with the shootings. He went to Tulare after
Halloween and saw Carpenter, but only went there to sell drugs.
McClain denied speaking with Welcome or telling Stevens he
had “put in some work.” He admitted being present when Price
was shot but said he was not the shooter.
Newborn called Shawntia Blaylock, a woman who had
been dating Hodges and was at the hospital the night he died.

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Although she recalled seeing many people, neither Newborn nor
the witness who claimed to have seen him was present. Newborn
also presented evidence that he had not learned of Hodges’s
death until the following day.
B. Penalty Phase
The first jury hung at the penalty phase. The discussion
below relates evidence presented in the retrial. McClain was
represented by counsel at the guilt phase and first penalty
phase. As discussed further below (see post, at pp. 97–106) he
chose to represent himself at the penalty retrial and was
assisted by advisory counsel.
1. Victim Impact
a. Edgar Evans
Robert N., Evans’s cousin, had taken cover during the
gunfire, then ran to the injured. Crawford and Coats lay on the
ground, and his cousin was on some stairs crying for his mother.
Robert suffers continuing distress from the loss of his friends.
Evans’s mother testified about their last conversation,
when she gave him permission to go to the Halloween party. She
had asked Evans to call home if he would be late, and she
became concerned when she had not heard from him by 10:00
p.m. She considered calling the police but decided against it.
Shortly after 11:00 p.m., another mother called to tell her about
the Wilson Street shooting and suggested she go to the hospital.
There, she saw Evans’s feet on a stretcher and knew it was her
son. A nurse gave her Bible verses found in Evans’s pocket.
A cousin testified that after the murder Evans’s mother
was “really out of it. She didn’t want to eat, couldn’t sleep, just
cried most of the time.” Evans’s older sister was also distraught.
She did not understand how her brother could have been

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murdered when he was just walking home from a party. She
stopped attending school and became afraid to leave the house.
Evans’s father also took the death poorly, losing business and
retreating socially.
Neighbors remembered Evans as a kind and helpful child
who attended church with his mother. He was a talented writer
and had won an essay contest on Dr. Martin Luther King, Jr.’s
“I Have a Dream” speech.
b. Stephen Coats
Kenneth Coats described the immediate aftermath of the
shooting. When the gunfire stopped, he left his hiding place to
look for Stephen. His mother, sister, and aunt approached as he
reached his brother’s body. Kenneth wanted to pick him up and
take him home, but his mother explained that the police needed
to investigate. Stephen’s body was partially wrapped around a
tree, and Crawford’s lay partially in the street. Kenneth
implored his friends to get up before realizing they were dead.
Stephen’s mother testified about seeing her son with the
other youngsters just moments before his death. When she
pulled into her driveway and heard gunshots, she ran back
toward the children. She saw Stephen’s body lying on the ground
with a head wound. He had no pulse. She recalled telling
Kenneth not to move his brother’s body and holding her 12-year-
old daughter. She knew she should leave the scene so the
investigators could work, but explained, “I had to virtually drag
my kids home. . . . For the first time in my life I had three kids
to bring home, I had to leave one behind. And that was the most
difficult thing I had to do.”
Stephen’s father learned of the shooting later that night
when his daughter called, crying and inconsolable. He felt

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Opinion of the Court by Corrigan, J.

“disbelief, surprise, shock,” and “kept thinking, well, it was
Halloween, maybe they are playing a cruel joke or something.”
Mr. Coats went to the scene and testified that he would “never
forget” the image of his son “lying on the ground . . . lifeless, ants
crawling on his face, in his nose, the bullet hole in his head.”
Coats blamed himself for his son’s death, believing the child
would still be alive if he had insisted he spend Halloween at
home.
Stephen enjoyed playing video games and basketball. A
talented artist, he had painted a mural at Washington Middle
School.
c. Reggie Crawford
Crawford’s mother had not wanted her children to go
trick-or-treating because she felt it was dangerous but allowed
Crawford to attend a party instead. In their last conversation,
she hurried her son out the door, telling him he looked nice. She
drove past the boys as they walked home later that night but
continued on because the group would not fit in her car. About
five minutes later she heard gunshots; then Robert N. ran in
saying her son had been shot. The crime scene was blocked off,
and officers told her to go to the hospital. Once there, she was
not allowed to go past the waiting area even though she insisted
her son had been hurt and she needed to see him. She still did
not know he had died. She eventually went home to wait for
news and did not learn of Crawford’s death until hours later.
Telling her other children was like going “through living hell”
because “they didn’t know how to handle it.”
d. Surviving Victims
Some of the other youngsters who were fired upon
testified. Lloyd S. was 12 years old that night. He said the

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shooting affected his life in many ways and “hurt” him. He was
unable to attend school afterward and began studying at home
instead.
Lawrence A. was 14 years old that Halloween. He was shot
in the leg when he left his hiding place to call for his friends. His
brother, A.A., and cousin, A.P., were also hit. When Lawrence
saw that Coats and Crawford were on the ground and bleeding
profusely, he “went into shock” because there was nothing he
could do. He heard Evans moaning but stayed with his injured
brother and cousin until the ambulance arrived. Lawrence said
the experience taught him it is difficult to make it on the streets
and “[y]ou never know who is coming.”
A.A., then 13 years old, was shot in the hand and
experienced lingering problems from the injury. He recalled
seeing his friends’ bodies on the ground and hearing a woman
screaming. He described removing a bandana from one friend’s
head to keep as a memento.
2. Aggravating Conduct
a. Holmes
Holmes had been arrested on August 3, 1990, for having a
loaded gun in his pocket at a carnival.
When the guilty verdict in this case was announced,
Holmes yelled at the jury: “Fuck you, you motherfuckers. P-9
rules.”
b. McClain
McClain had felony convictions for grand theft auto and
three instances of possessing a firearm as a felon. The
prosecution also presented evidence of several unadjudicated
violent offenses.

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On July 27, 1989, Raquel Flores was parked in front of her
home when McClain approached and asked if a certain person
lived there. When she said no, McClain reached forward, pulled
the chains from around her neck, and ran away. Flores
identified McClain in a field show-up half an hour later.
On August 9, 1990, Bernard Rowe and Bryant Cook stood
in Rowe’s front yard when McClain and another man
approached with handguns and stole a Mustang from the
driveway. They were stopped by police 10 minutes later, and
Rowe identified McClain as the thief.
In 1995, while incarcerated, McClain tried to attack
another inmate. Afterward, McClain was found with a jail-made
stabbing implement, or shank.
During this trial, after witness Joseph Petelle testified
and was leaving the courtroom, McClain said, “I’ll kill you.”
McClain also threatened deputies. McClain asked a deputy why
his belt was warm and learned it was because the deputies had
just tested it. When Newborn noted that his belt was cold,
McClain said, “if you do one of us, you’ll have to do us all.”
Newborn then said, “if you push one button . . . .” When a deputy
asked what had been said, Newborn repeated McClain’s threats
and added, “If you push one button, then you better push all
three, because you know what I’m going to do.” McClain then
said, “Don’t get within two feet of me or I’ll kill you, and I’ll [sic]
have weapons this time.” (See further discussion, post, at pp.
111–113.)
c. Newborn
Newborn was involved in two fights in 1986 while a ward
at California Youth Authority. In the first, he was the “clear[]
aggressor,” striking a fellow ward after an argument. In the

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second, he broke away from a supervisor while being disciplined,
hopped over a barrier, and started fighting with another ward.
The jury heard evidence of domestic violence Newborn
committed against several partners. Arguing with Tanchell
Anderson shortly after their relationship ended in 1991, name-
calling escalated to an exchange of blows. Anderson told police
Newborn had knocked her to the ground and punched her in the
face about 30 times.
When Newborn was dating Aneadra Keaton in 1992, he
once broke into a house she was visiting and assaulted her,
pushed her down a stairway, and forced her to leave. Another
time, Newborn hit Keaton several times during an argument.
Detrick Bright was driving a car in August 1992 when
Newborn kicked in her car window, injuring her with broken
glass. In 1993, he took her pager and hit her several times.
When police arrived, Newborn resisted and had to be subdued
with mace. Later that year, Newborn sprayed the then-pregnant
Bright in the face with household cleaners.
In November 1992, Rochelle Douglas had been dating
Newborn for over three years and was eight-and-a-half months
pregnant with his child. One day they argued, and Newborn
asserted the child was not his. He told her not to “put the baby
in his name” when it was born or he would hurt her. He then hit
her several times in the face.
Two other incidents were introduced. In 1992, Newborn
threatened Louise Jernigan with a gun during an argument. In
May 1993, he resisted arrest. Officers responding to reports of
an armed man asked to search Newborn and directed him to
place his hands on his head. He refused to comply, yelling curses
and attempting to incite a nearby crowd.

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3. Mitigation
a. Holmes
Holmes presented evidence to cast doubt on the guilt
verdicts. An officer with the Pasadena Police Department gang
unit testified that he did not personally see whether any P-9
members were present at the hospital on Halloween night.
Eyewitness Gabriel Pina conceded that his description of the
cars on Wilson Street was vague and partially inaccurate. A
detective testified that, in photographs, Holmes did not appear
to have a ponytail or to be “fat and flabby,” as Kenneth Coats
described the two men who fled from the shooting.
Holmes’s father had raised Holmes and his three siblings,
after his wife’s sudden death. His early childhood was
uneventful until his mother’s passing when Holmes was 14 or
15 years old. An aunt testified that the mother’s unexpected
death had a profound impact on Holmes and the entire family.
The family was close, and Holmes’s execution would affect them
all.
b. McClain
McClain’s advisory attorney testified that, as witness
Petelle passed by counsel table McClain actually said: “You’re
a dickhead,” not “I’ll kill you.”
The mother of McClain’s daughter testified that it would
sadden her and all her children if McClain were executed.
McClain’s mother testified that it would be hard for the family
to deal with her son’s execution because they believed him to be
innocent.

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c. Newborn
Newborn disputed Jernigan’s testimony, asserting he did
not brandish a weapon or speak to her at all.
Newborn’s mother testified that he was born when she
was in high school and already had another child. During the
five years she was married to Newborn’s father, he abused her.
After the divorce, Newborn’s relationship with his father was
hostile. He was close to two of his brothers until one was killed
and the other incarcerated. Fernando Hodges then became a
close friend and remained so until his death.
Newborn suffered various physical and intellectual
infirmities. He walked with a noticeable limp and was teased by
his peers. As a child, he repeatedly ate laundry detergent if it
was not stored properly. In his early teen years he wet the bed.
He was hospitalized with three childhood head injuries but
treated only with aspirin. Newborn was sent to juvenile camp at
age 13 and California Youth Authority at age 15. Suffering from
a learning disability and speech impediment, he was ultimately
labeled intellectually disabled. Of the 500 students at the
California Youth Authority, his I.Q. ranked 490th. He was
medicated for being “hyper” and developed a tolerance. After he
received increasingly higher doses, it was “like he just wasn’t
[t]here.”

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II. DISCUSSION
A. Guilt Phase
1. Pretrial Issues
a. Joinder/Severance
i. Joinder of Crimes
McClain contends the court erred in failing to sever the
attempted murder of Price from the Wilson Street shooting
charges.9 The court acted within its discretion.
The law favors trying all charged offenses together.
(People v. O’Malley (2016) 62 Cal.4th 944, 967 (O’Malley).)
Section 954 provides in pertinent part: “An accusatory pleading
may charge two or more different offenses . . . of the same class
of crimes or offenses, under separate counts.” Murder and
attempted murder, both of which are “assaultive crimes,” are

9
As all three defendants have done with regard to virtually
every claim, McClain asserts “that the error violated his rights
to a fair trial and reliable penalty determination under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution and corresponding provisions of the
California Constitution. In most instances, defendant[s] failed
to make these constitutional arguments in the trial court.
Nevertheless, unless otherwise indicated, we consider the
merits of these newly raised arguments because either (1) the
appellate claim is of a kind that required no objection to preserve
it, or (2) the claim invokes no facts or legal standards different
from those before the trial court, but merely asserts that an
error had the additional legal consequence of violating the
Constitution. [Citation.] In those circumstances, defendant[s’]
new constitutional arguments are not forfeited on appeal.
[Citations.] Where rejection of a claim of error on the merits
necessarily leads to a rejection of the newly asserted
constitutional objection, no separate constitutional analysis is
required and we have provided none.” (People v. Virgil (2011) 51
Cal.4th 1210, 1233−1234, fn. 4.)

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

offenses “ ‘ “of the same class” ’ ” and may be joined for trial.
(People v. Zambrano (2007) 41 Cal.4th 1082, 1128; see People v.
Miller (1990) 50 Cal.3d 954, 987.) A denial of severance is
reviewed for abuse of discretion. (Zambrano, at p. 1128.) “ ‘The
state’s interest in joinder gives the court broader discretion in
ruling on a motion for severance than it has in ruling on
admissibility of evidence.’ ” (Alcala v. Superior Court (2008) 43
Cal.4th 1205, 1221.) Where, as here, the statutory requirements
for joinder are met, the defendant must make a clear showing of
prejudice to demonstrate that the trial court abused its
discretion. (Ibid.)
In reviewing such a ruling, we consider: “(1) whether
evidence of the crimes to be jointly tried is cross-admissible; (2)
whether some charges are unusually likely to inflame the jury
against the defendant; (3) whether a weak case has been joined
with a stronger case so that the spillover effect of aggregate
evidence might alter the outcome of some or all of the charges;
and (4) whether any charge carries the death penalty or the
joinder of charges converts the matter into a capital case.”
(O’Malley, supra, 62 Cal.4th at p. 968.) McClain contends each
of these factors supported severance, making joinder of the
charges an abuse of discretion.10
“ ‘ “[T]he first step in assessing whether a combined trial
[was] prejudicial is to determine whether evidence on each of the

10
He also maintains the court failed to exercise its discretion
at all. The record reveals otherwise. The court reviewed the
motion and opposition documents, all of which comprehensively
argued the opposing positions on severance. It then ruled on the
motion. Its care was evident in its express acknowledgment that
facts might later emerge warranting reconsideration of that
decision.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

joined charges would have been admissible, under Evidence
Code section 1101, in separate trials on the others. If so, any
inference of prejudice is dispelled.” ’ ” (People v. Jenkins (2000)
22 Cal.4th 900, 948.) Although cross-admissibility is not “a
precondition to joinder of charges” (O’Malley, supra, 62 Cal.4th
at p. 968, citing § 954.1), its existence negates prejudice.
(Jenkins, at p. 948.) McClain asserts that evidence of the
charges was not cross-admissible because there were no
common elements between offenses and the offenses did not
relate to one another. That is not the case. Evidence of the attack
on Price would likely have been admissible in a hypothetical
separate trial on the Halloween charges because it was relevant
to prove McClain’s state of mind. Evidence of uncharged crimes
may be admitted when relevant to prove a disputed fact, like a
defendant’s intent or motive. (Evid. Code, § 1101, subd. (b).)
Like the Halloween shootings, the Price attack was clearly gang-
motivated, as evidenced by Price’s testimony that McClain said
“thank you, Blood” when handed a cigarette. McClain concedes
this was a gang-related insult, because Price was a member of
the Crips. But the connection between the shootings surpasses
simple gang enmity. The shootings appeared to be connected in
a sequence of retaliatory violence. (See People v. Price (1991) 1
Cal.4th 324, 388–389 (Price).) Three days after Bloods member
McClain shot Crips member Price without provocation, a Crips
member shot and killed Bloods member Hodges in the same
apartment complex. The Wilson Street shootings took place
within hours. Holmes and McClain told others the shootings
were in retaliation for the Hodges killing. Someone was heard
to say: “now Blood,” right before the gunfire began. Newborn
told his cousin he shot at McFee’s house and later rode with
others looking for Crips to shoot. Even McClain, then

20
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

representing himself, agreed this “chain of events” made
defendants “look guilty.”
McClain next asserts the Halloween charges were unduly
inflammatory, rendering joinder with the Price charge
improper. Although the Halloween shootings garnered
significant media attention, both crimes were demonstrably
cruel. (See Price, supra, 1 Cal.4th at p. 390.) Price was shot in
the face at close range, his kind act for a stranger repaid with
gunfire. Indeed, McClain concedes the gang aspect of the Price
shooting rendered it “inherently inflammatory.” The Halloween
shootings were in the same vein. As in the Price case, the
incidents were “different in their particulars,” but “equally
abhorrent.” (Id. at p. 390.)
Nor is there a concern that joinder could improperly
enhance a weak case. Strong evidence implicated McClain in
both offenses. Price selected McClain’s image from a
photographic lineup before he knew McClain’s name. He
testified emphatically and consistently that McClain shot him.
A great deal of evidence also confirmed McClain’s involvement
in the Halloween shootings. McClain admitted his involvement
to Stevens and showed Welcome a gun he had used in a shooting.
He changed his appearance, failed to meet with his parole
officer, and fled the area days after the crimes. He told a fellow
passenger he was traveling under an assumed identity and
feared police detection. Given the strength of the evidence of
McClain’s involvement with both the Price and Halloween
crimes, failure to sever did not lead to two separate, weak cases
becoming one in the minds of jurors, as McClain claims.
Finally, the fact that this is a capital case does not demand
a different outcome. “Even where the People present capital

21
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

charges, joinder is proper so long as evidence of each charge is
so strong that consolidation is unlikely to affect the verdict.”
(People v. Ochoa (2001) 26 Cal.4th 398, 423; accord, O’Malley,
supra, 62 Cal.4th at p. 969.) That standard was met here.
ii. Joinder of Parties
Each defendant moved repeatedly to sever his case from
those of his codefendants. Defendants now argue the court’s
refusal to grant severance resulted in error under People v.
Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United
States (1968) 391 U.S. 123 (Bruton), violating their right to
confront and cross-examine witnesses against them. There was
no error.

1) Legal Principles
The law of joinder and severance is settled. “When two or
more defendants are jointly charged with any public offense,
whether felony or misdemeanor, they must be tried jointly,
unless the court order[s] separate trials.” (§ 1098, italics added.)
The Legislature has “ ‘ “expressed a preference for joint trials” ’ ”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378
(Bryant, Smith and Wheeler)), which promote efficiency “ ‘and
“serve the interests of justice by avoiding the scandal and
inequity of inconsistent verdicts.” ’ ” (Id. at p. 379, quoting
Zafiro v. United States (1993) 506 U.S. 534, 537 (Zafiro).) We
review a denial of severance for abuse of discretion, considering
the facts as they appeared at the time of the ruling. (Bryant,
Smith and Wheeler, at p. 379.) If the ruling was proper when
made, a reviewing court may reverse only upon a showing that
joinder “ ‘ “ ‘resulted in “gross unfairness” amounting to a denial
of due process.’ ” ’ ” (Ibid.)

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

The confrontation principles applicable in joint trials are
also well established. A criminal defendant has a Sixth
Amendment right to confront and cross-examine adverse
witnesses. (Pointer v. Texas (1965) 380 U.S. 400.) “A problem
arises when a codefendant’s confession implicating the
defendant is introduced into evidence at their joint trial. If the
declarant codefendant invokes the Fifth Amendment right
against self-incrimination and declines to testify, the implicated
defendant is unable to cross-examine the declarant” about the
confession. (People v. Lewis (2008) 43 Cal.4th 415, 453 (Lewis).)
The United States Supreme Court addressed this concern
in Bruton. It held that when a nontestifying codefendant’s
confession is admitted and implicates the defendant, the
defendant’s right to cross-examination is violated. (Bruton,
supra, 391 U.S. at pp. 127−128.) A jury instruction to disregard
the codefendant’s statement in assessing the defendant’s guilt
will not cure the violation. (Id. at pp. 135–137.) “The high court
reasoned that although juries ordinarily can and will follow a
judge’s instructions to disregard inadmissible evidence, ‘there
are some contexts in which the risk that the jury will not, or
cannot, . . . is so great, and the consequences of failure so vital
to the defendant, that the practical and human limitations of
the jury system cannot be ignored.’ ” (Lewis, supra, 43 Cal.4th
at p. 453.) We had reached a similar conclusion in Aranda,
explaining that if the prosecution seeks to introduce a statement
in which one codefendant implicates another, the trial court may
address the request in one of three ways. It may: (1) admit the
statement but ensure it is redacted to eliminate references to
codefendants; (2) grant severance if redaction is impossible; or
(3) exclude the statement. (Aranda, supra, 63 Cal.2d at pp. 530–
531.)

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

The high court has continued to refine these rules. In
Richardson v. Marsh (1987) 481 U.S. 200, 211, it explained, “the
Confrontation Clause is not violated by the admission of a
nontestifying codefendant’s confession with a proper limiting
instruction when . . . the confession is redacted to eliminate not
only the defendant’s name, but any reference to his or her
existence.” In Gray v. Maryland (1998) 523 U.S. 185, 192 (Gray),
however, it clarified that when the redaction “simply replace[s]
a name with an obvious blank space or a word such as ‘deleted’
or a symbol or other similarly obvious indication[] of alteration,”
the resulting statement must be excluded as indistinguishable
from the statements in Bruton. “When, despite redaction, the
statement obviously refers directly to the defendant, and
involves inferences that a jury ordinarily could make
immediately, even [where] the confession [is] the very first item
introduced at trial, the Bruton rule applies and introduction of
the statement at a joint trial violates the defendant’s rights
under the confrontation clause.” (People v. Burney (2009) 47
Cal.4th 203, 231.)

2) Discussion

a) Claims Related to DeSean
Holmes’s Testimony
McClain and Holmes moved for severance before trial,
arguing Newborn had made statements after his arrest that
implicated them.11 The prosecution proposed to redact the

11
Newborn had previously sought severance based on
general Aranda/Bruton concerns. The court denied the motion
without prejudice, assuring the parties it would exclude
“anything that looks like or smells like Aranda/Bruton issues.”

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

statements to avoid the implication, and the motions were
denied. The motions were renewed before DeSean Holmes was
called to testify about incriminating statements Newborn made
during their joint incarceration. Previously, the prosecution had
agreed that DeSean would not be required to testify about his
cousin, Holmes. McClain protested that DeSean’s examination
would result in the presentation of “half-truths” and inferences
that would not be subject to cross-examination. He and Holmes
sought severance and a mistrial. The motions were denied.
DeSean testified that Newborn said he had shot at
McFee’s house on Halloween and also rode around with people
who were shooting at Crips. DeSean mentioned no names in his
testimony and gave no evidence incriminating Holmes or
McClain. Further, the court instructed that DeSean’s testimony
was offered against Newborn alone. Nevertheless, McClain and
Holmes both contend DeSean’s reference to unnamed others
who committed crimes with Newborn allowed the jury to infer
that they were the accomplices Newborn identified. No
Aranda/Bruton error occurred, and the court did not abuse its
discretion in denying severance. (See Lewis, supra, 43 Cal.4th
at p. 455.)
DeSean’s testimony conveyed precisely the type of
redacted statement Aranda contemplated. A defendant’s
confrontation right is not violated if a codefendant’s statement
can be redacted to eliminate a specific reference. (Aranda,
supra, 63 Cal.2d at pp. 530–531.) Although the high court later
held that the right to confrontation is offended when a redaction
refers directly or by clear inference to a given defendant (Gray,
supra, 523 U.S at p. 192), the redaction here comported with
Gray’s holding. There was ample evidence that a sizable group
was involved in the Wilson Street attack. DeSean’s testimony

25
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

referred to unspecified and unenumerated “others” who had
accompanied Newborn. This group could have included anyone.
Neither McClain nor Holmes was implicated by this
purposefully vague reference, and no prejudice resulted from the
statement’s introduction.
McClain argues to the contrary, raising two concerns
unrelated to Newborn’s statements. First, McClain complains
he was erroneously prevented from cross-examining DeSean
about DeSean’s invocation of the privilege against self-
incrimination regarding a separate shooting incident. Although
DeSean described himself as a crime victim in that incident, the
parties later stipulated he was not, in fact, a victim. McClain
asserts this limit on his ability to cross-examine DeSean,
coupled with the redacted statement, allowed the jury to infer
that he, McClain, was involved in both the shooting incident
DeSean referred to and the Halloween shootings Newborn
described. The argument is unpersuasive. The trial court
appropriately guarded DeSean’s invocation of his right against
self-incrimination. Nothing about this ruling rendered
Newborn’s redacted statement suggestive of McClain’s
involvement with the Halloween shooting. The two simply do
not relate, and McClain’s efforts to conflate them fail.
Second, McClain argues it was error for the court to deny
his severance motions because it had granted the prosecution’s
motion to sever Bowen and Bailey and there was no meaningful
distinction between the cases. McClain’s attorney apparently
accepted the court’s decision at the time, because he requested
only an opportunity to revisit how redacted statements would be
used before their admission. The court accommodated this
request. Assuming the current argument was not forfeited, it
lacks merit. Each severance denial is evaluated based on

26
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

circumstances known to the trial court at the time the decision
is made. (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p.
379.) Although McClain argues the severance of Bowen and
Bailey belies any concern about judicial economy, these concerns
would only have increased with further divisions. Each
successive severance would tax scarce resources, burdening both
the court and witnesses who would be compelled to return to
testify in multiple trials.12 The trial court explained as much,
stating, “We have severed off . . . two clients. The building is
bankrupt; the county is bankrupt. Separate trials for every
defendant would be unacceptable to everyone.” Even
considering the severance of two other codefendants, the court
did not abuse its discretion in denying McClain’s motion; he has
not shown that the resulting consolidated trial was grossly
unfair. (See People v. Turner (1984) 37 Cal.3d 302, 313.)
Holmes’s claims are also unavailing. DeSean testified that
he saw Holmes with Hodges and others in October 1993. To the
extent this testimony implicated Holmes in a crime, it did not
offend the confrontation clause because DeSean was available
for cross-examination. (See Bruton, supra, 391 U.S. at pp. 127–
128, 135–137.) Moreover, the jury was given CALJIC No. 2.07,
telling them to consider DeSean’s testimony only against
Newborn. Jurors are generally presumed to follow instructions.
(People v. Sandoval (2015) 62 Cal.4th 394, 422.)
Holmes also contends the joint trial prevented him from
cross-examining DeSean about his statements in a telephone
conversation with defense counsel. DeSean claimed Newborn’s

12
We note that the guilt phase lasted well over four months,
including jury selection. It involved 73 witnesses and 173
exhibits, including lengthy audiotapes.

27
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

attorney called him and said he “had the right not to say
anything and . . . do what Fuhrman did in the O.J. trial.”13
Newborn’s attorney disputed DeSean’s account, noting that
Holmes’s attorney had also participated in the call. Although
Holmes’s attorney agreed the conversation “did not go the way
[DeSean] is saying,” he was uncomfortable about potentially
becoming an impeachment witness. Newborn insisted it was
important to impeach DeSean. Ultimately, DeSean asserted
that it was counsel for Holmes, not Newborn, who told him he
could decline to testify and invoke the Fifth Amendment. He was
not challenged on the point during his testimony.
Holmes claims his attorney’s efforts to examine DeSean
were “completely ineffective” because he could not impeach
DeSean without becoming a witness. He contends the jury could
have been left with the impression that he was trying to
manipulate the legal system, an inference that may have been
exacerbated by introduction of the agreement that DeSean
would not be testifying against him. Holmes did not object on
this basis at trial. Even assuming the claim is not forfeited, it
fails on the merits.

13
As was widely reported and televised at the time, Mark
Fuhrman was a former Los Angeles Police detective and central
figure in the O.J. Simpson murder trial. Fuhrman was called to
testify about evidence he recovered at the Simpson estate,
including a bloody glove. On cross-examination, he was asked
about his history of using racial epithets against African-
Americans and testified that he had not done so during the past
decade. He was impeached with numerous recordings in which
he used such an epithet. Asked whether he planted or
manufactured evidence in the Simpson case, he invoked his
Fifth Amendment privilege against self-incrimination.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Although it is true that Holmes’s attorney did not examine
DeSean in depth about the referenced conversation, the
impeaching point was definitively made. The parties expressly
stipulated that at no time did counsel for Holmes encourage
DeSean to invoke the privilege or otherwise encourage him not
to testify. The stipulation effectively impeached DeSean’s
testimony, and counsel could reasonably have chosen to rely on
it instead of pursuing the potentially risky strategy of further
probing the issue on cross-examination.
Nevertheless, Holmes claims his right to counsel was
impaired by his attorney’s conflict. The Sixth Amendment and
California Constitution guarantee the right to loyal and conflict-
free counsel. (People v. Doolin (2009) 45 Cal.4th 390, 417–418.)
“In the context of a conflict of interest claim, deficient
performance is demonstrated by a showing that defense counsel
labored under an actual conflict of interest ‘that affected
counsel’s performance — as opposed to a mere theoretical
division of loyalties.’ ” (Id. at p. 417.) An adverse impact on
performance is shown by demonstrating counsel did or did not
do something he otherwise might have done absent the conflict.
(Id. at pp. 417–418.) Holmes fails to show the existence of any
actual impact on his counsel’s performance. Nor has Holmes
shown prejudice from any such asserted conflict. To obtain relief
for ineffective assistance of counsel, a defendant must show both
deficient performance “and a reasonable probability that but for
counsel’s deficiencies, the result of the proceeding would have
been different.” (Id. at p. 421.) Here, the jury was instructed that
DeSean’s testimony pertained only to Newborn. (See People
v. Sandoval, supra, 62 Cal.4th at p. 422.) The parties had also
stipulated, contrary to DeSean’s testimony, that Holmes’s
attorney never advised DeSean along the lines he alleged. Thus,

29
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

the jury would have understood that DeSean’s testimony did not
relate to Holmes and his allegations about Holmes’s attorney
were agreed to be untrue. 14
Holmes also claims the joint trial resulted in gross
unfairness because DeSean’s agreement not to testify against
him may have implied that DeSean either feared, or was trying
to protect, him. However, the agreement made clear that
questions from other defendants could be limited only to the
extent permitted by law. DeSean was thus aware of the
possibility he would be asked about Holmes, and he agreed to
answer any such questions honestly. Although DeSean
indicated that he was afraid of some people, he never testified
that he feared Holmes. Nor did his testimony suggest he was
protecting his cousin. It is speculative to conclude the jury would
have drawn the negative inferences Holmes suggests. Moreover,
any such inference would have been cured by the jury’s
instruction to consider DeSean’s testimony against Newborn
alone.

b) Claims Related to Derrick
Tate’s Testimony
During an Evidence Code section 402 hearing, Newborn
raised an Aranda issue concerning Derrick Tate’s expected
testimony that Holmes had said he, Newborn and one Ernest

14
Separately, Holmes suggests the conflict gave rise to
misconduct because the prosecutor’s closing argument alluded
to DeSean’s statement about Holmes’s attorney. However, the
prosecutor immediately corrected his statement after an
objection was raised. The fleeting comment, immediately
corrected, does not constitute prosecutorial misconduct
rendering the trial grossly unfair.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Holly committed the Halloween shootings. The prosecutor
responded that Tate had been instructed not to mention
Newborn or McClain, and the court stressed that Tate could only
refer to any of Holmes’s coparticipants by generic pronouns,
such as “others.” The court permitted McClain to elicit that he
was not among the “others” Holmes had mentioned. When
Newborn objected, noting he would be unable to extract similar
testimony, the prosecutor proposed a limiting instruction, to
which Newborn agreed.
The jury was told that Tate’s testimony “concerning the
statement of Karl Holmes [was] limited to defendants Karl
Holmes and Herbert McClain.” When Tate testified, he did not
identify the “others” Holmes had mentioned. He did agree that
Holmes said McClain had not been involved.
Newborn now argues Tate’s testimony implicated him by
process of elimination, in violation of Aranda/Bruton principles.
Not so. The court reasonably concluded Newborn’s concerns
could be sufficiently addressed by redaction and a limiting
instruction. Tate was directed to refer only to “others” who
joined Holmes in the shooting, and he complied with this
direction. Moreover, Newborn specifically agreed to a limiting
instruction that the “others” did not include McClain. There was
extensive evidence that a large group converged upon the
hospital after Hodges was shot and that several cars full of
people flashing P-9 signs were present on Wilson Street
immediately before the shooting. Any mention of “others” was
broad enough to avoid the specific inference of which defendants
complain. Nor did the court abuse its discretion in denying
severance before Tate testified. (See Bryant, Smith and Wheeler,
supra, 60 Cal.4th at p. 379.) “ ‘[A] trial court must order a joint
trial as the “rule” and may order separate trials only as an

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

“exception.” ’ ” (People v. Cleveland (2004) 32 Cal.4th 704, 726.)
“[I]mportant concerns of public policy are served if a single jury
is given a full and fair overview of the defendants’ joint conduct
and the assertions they make to defend against ensuing
charges.” (Bryant, Smith and Wheeler, at p. 379.) Separate trials
may be warranted under certain circumstances, including
conflicting defenses, incriminating confessions, confusing
differences in the charged counts, risks of prejudice from
association with codefendants, or possibilities for exoneration by
codefendants testifying in a separate trial. (See ibid.) None of
those circumstances is present here. Apart from an additional
charge against McClain, the defendants faced nearly identical
charges. There was little risk that evidence on multiple counts
would engender confusion. (See Cleveland, at p. 726.) Strong
cases existed against each defendant, and there is no reason to
think that any of them was prejudiced by association with any
other. Nor is there an indication any defendant would have
given exonerating testimony in a separate trial. (See ibid.) They
did not offer conflicting defenses, and the case did not involve a
confession by any defendant incriminating the others. (Ibid.) As
in People v. Cleveland, “this was a classic case for joint trial.”
(Ibid.)

c) Claims Regarding Defendant
McClain’s Testimony
Holmes and McClain both moved for severance before
McClain testified. Holmes worried he would be implicated by
McClain’s statement to Carpenter about the shooting of people
he thought were Crips but later learned were children.
McClain’s motion similarly sought to prevent the prosecution
from asking about this statement. The court denied the motions,

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

reasoning that the prosecution had a right to impeach McClain
with prior inconsistent statements if he chose to testify.
Holmes now claims something akin to Griffin error
occurred during McClain’s testimony because, by examining
McClain about his decision to testify, the prosecutor came close
to commenting on Holmes’s silence. In Griffin v. California
(1965) 380 U.S. 609, 615, the United States Supreme Court held
the Fifth Amendment forbids the prosecution from commenting
on a defendant’s silence at any phase of trial. No Griffin error
occurred here. On cross-examination, McClain asserted that
prosecution witnesses were lying, and he was telling the truth.
The prosecutor challenged this assertion by asking whether
McClain would “get up there and admit it” if he had killed the
victims. Understood in context, this question related to
McClain’s own credibility and was not an impermissible
commentary on the codefendants’ silence. Indeed, McClain’s
response endorsed his codefendants’ decision not to take the
stand. He said, “my homeboys got to do what their lawyers tell
them for their best interest.” He explained that he was not doing
the same because he did not believe his attorney had his best
interests in mind. Rather than be “railroad[ed],” he wanted to
take the stand to speak the truth. Jury instructions also
addressed the issue. Specifically, the jury was told: (1) a
question is not evidence and is useful only to the extent it helps
jurors understand the response; (2) a defendant has the right
not to testify and no inferences may be drawn from the decision
not to do so; and (3) “[i]n deciding whether or not to testify, the
defendant may choose to rely on the state of the evidence and
upon the failure, if any, of the People to prove beyond a
reasonable doubt every essential element of the charge against
him.” Accordingly, the court had no obligation to sever Holmes’s

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

trial from McClain’s on its own motion. (People v. Turner, supra,
37 Cal.3d at p. 313.)
Separately, although he did not seek relief below,
Newborn contends the court erred in failing to sever his case or
grant a mistrial sua sponte because McClain’s testimony would
not have been admitted against him in a separate trial. In
Zafiro, supra, 506 U.S. at page 539, the United States Supreme
Court explained that severance should be granted “only if there
is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants,” which might occur if
evidence admitted against a codefendant would have been
inadmissible in a trial against the defendant alone. However,
the high court rejected the argument Newborn makes here. It
explained: “A defendant normally would not be entitled to
exclude the testimony of a former codefendant if the . . . court
did sever their trials, and we see no reason why relevant and
competent testimony would be prejudicial merely because the
witness is also a codefendant.” (Id. at p. 540) Newborn fails to
show how he could have been prejudiced. McClain asserted that
all three defendants were innocent, that Newborn and Holmes
heeded their attorneys’ advice not to testify, and that he was
testifying against his lawyer’s advice because he felt
“railroad[ed].” Finally, nothing in the record suggests the jury
was “unable or unwilling to assess independently the respective
culpability of each codefendant or [was] confused by the limiting
instructions.” (People v. Ervin (2000) 22 Cal.4th 48, 69; see
Zafiro, at pp. 540–541.)

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

b. Jury Selection
i. Cause Challenge
Defendants contend the for-cause excusal of Juror No. 126
deprived them of due process and a representative jury. The
claim fails.

1) Background
Juror No. 126 expressed considerable ambivalence about
the death penalty in her questionnaire. Asked for her general
feelings on the subject, she responded: “I’m for the death
penalty I think. I never really thought about it. —
Ambivalence — ” When asked whether California should have
the death penalty, she checked both the “yes” and “no” boxes and
wrote, “I think so, but I don’t know at this time.” She marked
“yes” when asked whether it would be difficult for any reason to
sit on a case where she would be called upon to impose the death
penalty, adding, “who would not find it difficult to make a
decision regarding someone’s life.” Although stating it would not
be impossible for her to vote for either outcome, she
acknowledged she would not like the responsibility of casting a
vote that would cause someone to be executed. She did not know
whether she might refuse to find special circumstances true,
regardless of evidence, to avoid having to consider penalty. She
explained: “I’m really not sure how I feel about the death
penalty. I gues[s] it would be ambivalence. On one hand I believe
in time and with help people can change. These [sic] way of life,
how they see and do things. On the other maybe there are some
people who will never change, who have no conscious, remorse
or any feelings of guilt.”
During voir dire, Juror No. 126 repeated that her position
toward the death penalty was best described as “ambivalent.”

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

When the court explained the jury’s role in evaluating penalty
phase and asked whether Juror No. 126 was capable of
participating in those deliberations, she replied she was “not
certain” she could. The court asked whether there were any
circumstances in which she could impose the death penalty,
observing that if she and her fellow jurors voted in favor of
death, they are “actually . . . the one[s] putting that person to
death.” Given additional time to consider her feelings, the juror
explained she had given it a great deal of thought and remained
uncertain whether imposing the death penalty was something
she could do. The court then asked if Juror No. 126 would feel
more comfortable not sitting on a death penalty case, and she
responded, “I am sure we all would. Yes, I would.” The court
then indicated its intent to relieve her of service. McClain’s
attorney asked to inquire further, but the court denied the
request. In a chambers conference immediately afterward, the
court explained that it had asked enough questions and did not
think further inquiries were needed. The court concluded the
juror’s “heart” would make her unable to serve in a capital case.
The court offered defense counsel an opportunity to make a
record of questions she would have asked, but counsel submitted
the matter and raised no objection to the dismissal.

2) Discussion
Defendants contend the court improperly refused to
permit defense questioning and improperly excused the juror.
Assuming the claims were preserved, they lack merit.
In a capital case, particular circumstances may support
the excusal of a potential juror for cause. (People v. Cash (2002)
28 Cal.4th 703, 720.) The test is whether the juror’s views
toward capital punishment would “ ‘prevent or substantially

36
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

impair the performance of [her] duties as a juror in accordance
with [her] instructions and [her] oath.’ ” (Wainwright v. Witt
(1985) 469 U.S. 412, 424 (Witt).) A juror’s bias need not be
demonstrated with “ ‘unmistakable clarity’ ” (ibid.), however,
and “deference must be paid to the trial judge who sees and
hears the juror” (id. at p. 426). When a prospective juror has
made conflicting or ambiguous statements, we accept as binding
the trial court’s determination on the juror’s true state of mind.
(People v. Souza (2012) 54 Cal.4th 90, 123.) An excusal for cause
will be upheld on appeal “ ‘if supported by substantial
evidence.’ ” (People v. Jones (2017) 3 Cal.5th 583, 615.)
We have also explained a party is entitled to ask questions
that are specific enough to determine whether prospective jurors
harbor bias, based on a fact or circumstance that may be shown
by the trial evidence, and thus be unable to consider aggravating
and mitigating evidence when determining penalty. (People v.
Cash, supra, 28 Cal.4th at pp. 720–721.) Voir dire concerning
death-qualification must thread the needle between two
extremes, ensuring it is neither “so abstract that it fails to”
identify jurors whose attitudes “would prevent or substantially
impair the performance of their duties,” and yet, not so specific
as to encourage prejudgment. (Id. at p. 721.) Trial courts are
vested with the considerable discretion necessary to accomplish
this exercise. (Id. at p. 722)
The court was not obliged to permit further questioning
on this record. (See People v. Cash, supra, 28 Cal.4th at p. 721.)
Defendants challenge the court’s refusal to allow inquiry about
whether the juror could “shoulder the responsibility of sitting as
a capital juror and render[] a judgment.” But the record shows
Juror No. 126 was questioned about this very subject.
Defendants identify no other line of questioning they were

37
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

prevented from pursuing, and the record reveals none. The court
said in camera that defendants could “make [their] record” and
“ask questions.” They declined, with McClain’s counsel agreeing
simply to “submit it.” No error occurred.
The court’s excusal for cause was within its discretion. As
we have repeatedly held, the trial court is in the best position to
assess the juror’s demeanor. (People v. Souza, supra, 54 Cal.4th
at p. 123.) It did so here, concluding Juror No. 126 did not wish
to, and would ultimately be unable to, serve as a juror in a death
penalty case. That decision is fairly supported by the record. The
juror’s questionnaire responses were consistently equivocal. It
was clear she struggled to fully articulate her views and was
uncomfortable with the death penalty and with her potential
role in adjudicating it.
She provided a number of narrative responses in the
questionnaire adding further reflections on capital punishment.
Her views were discussed at length during voir dire. Her
discomfort appeared palpable, prompting the court to twice offer
her more time to reflect on her views. Both times she responded
by expressing doubt that she could serve as a death penalty
juror or vote for execution. Defendants’ complaint that the court
“short circuited” voir dire without sufficiently probing the juror’s
views is not well taken. A court must evaluate prospective jurors
individually as they present themselves. Some are more able
than others to express deeply held views and to make them
understood. “[M]any prospective jurors ‘simply cannot be asked
enough questions to reach the point where their bias has been
made “unmistakably clear,” ’ but ‘[d]espite this lack of clarity in
the printed record . . . there will be situations where the trial
judge is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law.’ ([ ]

38
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Witt[, supra,] 469 U.S. [at pp.] 424–426 . . . .)” (People v. Silveria
and Travis (2020) 10 Cal.5th 195, 258.) The court cannot
artificially truncate the process or foreclose legitimate inquiry,
but that did not occur here. The trial court carefully reviewed
the juror’s questionnaire responses and conducted thorough voir
dire. After assessing Juror No. 126’s demeanor in addition to her
written and verbal responses, it concluded she was not qualified
to serve. The court’s decision is supported by the record, and we
are presented with no reason to disturb it. (Ibid.)
ii. Peremptory Challenges
Defendants contend the prosecution’s use of peremptory
challenges violated Batson v. Kentucky (1986) 476 U.S. 79 and
People v. Wheeler (1978) 22 Cal.3d 258. The trial court found
there was no prima facie showing of discrimination. Although
we find this issue to be close, we conclude there was not a prima
facie showing on this record.
Three hundred and three panelists reported for evaluation
as potential jurors. After excusals for hardship or cause, a group
of 83 remained.15 Of that number it appears from the judge’s
notes that at least 16 panelists were African-American women.
The prosecution had exercised 12 challenges when the defense
made a Batson/Wheeler motion challenging its use of
peremptories against African-American women, “a cognizable

15
Our colleague in the dissent focuses on the 64 panelists
actually examined rather than the total number in the venire.
The discrepancy is significant. It is accurate to say that 64
panelists were examined. However, an advocate takes into
account all those who may come into the box for consideration.
All panelists are in play until the jury is finalized.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

subgroup” for purposes of this analysis.16 (See People v. Clair
(1992) 2 Cal.4th 629, 652.) Of the 12 panelists excused at that
point, six were members of the identified group. In ruling on the
prima facie showing, the court stated it found nothing: “in the
nature of bias or prejudice” in the excusals, in light of the jurors’
questionnaire and voir dire responses. It concluded the
prosecution had “a right to preempt those people they have done
so far.”
The law is clear and firmly established. “ ‘Both the federal
and state Constitutions prohibit any advocate’s use of
peremptory challenges to exclude prospective jurors based on
race.’ ” (People v. Parker (2017) 2 Cal.5th 1184, 1210 (Parker).)
“ ‘Doing so violates both the equal protection clause of the
United States Constitution and the right to trial by a jury drawn
from a representative cross-section of the community under
article I, section 16 of the California Constitution.’ ” (Id. at p.
1211.) The law also recognizes “ ‘a rebuttable presumption that
a peremptory challenge is being exercised properly, and the
burden is on the opposing party to demonstrate impermissible
discrimination.’ [Citation.] ‘A three-step procedure applies at
trial when a defendant alleges discriminatory use of peremptory
challenges. First, the defendant must make a prima facie
showing that the prosecution exercised a challenge based on
impermissible criteria. Second, if the trial court finds a prima

16
Although at trial defendants challenged only the excusal
of African-American women, some briefing mentions panelists
from other protected categories. Our review is limited to the
motion actually made. (See People v. Bolin (1998) 18 Cal.4th
297, 317.) Accordingly, we examine the propriety of the
prosecution’s excusal of panelists from the group identified at
trial. (See People v. Rhoades (2019) 8 Cal.5th 393, 429, fn. 14.)

40
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

facie case, then the prosecution must offer nondiscriminatory
reasons for the challenge. Third, the trial court must determine
whether the prosecution’s offered justification is credible and
whether, in light of all relevant circumstances, the defendant
has shown purposeful race discrimination. [Citation.] “The
ultimate burden of persuasion regarding [discriminatory]
motivation rests with, and never shifts from, the [defendant].” ’ ”
(Ibid.)
When this jury was selected in 1995, there was some
confusion as to the nature of the required prima facie showing.
In People v. Johnson (2003) 30 Cal.4th 1302, 1306, we held: “to
state a prima facie case, the objector must show that it is more
likely than not the . . . challenges . . . were based on
impermissible group bias.” The United States Supreme Court
subsequently disapproved the “more likely than not”
formulation as setting too high a threshold. Instead, it explained
that Baston’s first step is satisfied if the objector produces
sufficient evidence to support an inference that discrimination
occurred. (Johnson v. California (2005) 545 U.S. 162, 170.) For
cases tried before Johnson v. California, we have “adopted a
mode of analysis under which, rather than accord the usual
deference to the trial court’s no-prima-facie case determination,
we ‘review the record independently to determine whether the
record supports an inference that the prosecutor excused a juror
on a prohibited discriminatory basis.’ ” (People v. Rhoades,
supra, 8 Cal.5th at pp. 428–429.) We apply that analytical
approach here and consider “ ‘all relevant circumstances’ ” in
doing so. (Id. at p. 429.)
“A court may . . . consider nondiscriminatory reasons for a
peremptory challenge that are apparent from and ‘clearly
established’ in the record [citations] and that necessarily dispel

41
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

any inference of bias.” (People v. Scott (2015) 61 Cal.4th 363,
384.) Here, the trial court found no prima facie case of
discrimination, and the prosecution was not asked to provide
any reason for its challenges. Accordingly, our review is
necessarily circumscribed.
In conducting our review “[w]e have identified certain
types of evidence as ‘especially relevant.’ ” (People v. Rhoades,
supra, 8 Cal.5th at p. 429.) These include: whether a party has
struck most or all of the members of the identified group from
the venire; has used a disproportionate number of strikes
against the group; or has only engaged the panelists in desultory
voir dire.17 (People v. Rhoades, at p. 429.)
Our independent review does not reflect the court erred.
First, the court was well aware of, and sensitive to, the issue.

17
People v. Rhoades also noted as “especially relevant”
factors “ ‘whether the defendant is a member of [the identified]
group, and whether the victim is a member of the group to which
a majority of remaining jurors belong.’ ” (People v. Rhoades,
supra, 8 Cal.5th at p. 429.) Those factors are not implicated
here. All three defendants and all victims are African-American
males. As we discuss in greater detail below, 10 of the
empaneled jurors were equally divided among African-
Americans and Whites, with the remaining two jurors being of
Hispanic descent. Flowers v. Mississippi (2019) 588 U.S. __, 139
S.Ct. 2228, 2243, a third stage Batson case, mentions two
additions to the list of especially relevant factors: comparing
panelists who were excused against those who were not, and
evaluating whether the prosecutor misrepresented the record in
defending the strikes. Because this is a first stage case, and the
prosecution was not asked to defend its strikes, these relevant
third stage factors are not at play here. Further we note that
defendants do not assert they were precluded from presenting
additional evidence or arguing the relevance of the Flowers
factors based on the record.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Indeed, during a later in-chambers discussion of another issue,
the court turned to the question of peremptory challenges,
inviting both sides to consider the appearance that their pattern
of challenges might convey to an observer. The court told both
sides to “be careful,” and elaborated: “I think your peremptories
are proper, but you are giving the appearance of [bias]. I am not
admonishing you. I’m just saying I’m sensitive to that on both
sides.”18
Turning to the pertinent “especially relevant” factors, the
record reveals the following. African-American women
comprised at least 19 percent of the 83 available potential
jurors. When the motion was made, African-American women
made up 26 percent of the 34 panelists who had been questioned.
Yet the prosecution used six of its first 12 challenges to excuse
them, a rate of 50 percent.19 Those numbers are important and
reflect an obvious disparity. But, as with most relevant factors,
they must be considered in context. (See Parker, supra, 2 Cal.5th
at p. 1212.) African-American women comprised 33 percent of
the jurors ultimately seated, a proportion which slightly
exceeded their representation among the 34 panelists who had
been questioned when the motion was lodged.

18
When the selected jurors were ultimately sworn the
defense had excused nine Whites, two African-Americans, three
Asian-Americans and one Hispanic. We emphasize that one
party’s Batson/Wheeler violation in no way excuses similar
misconduct by the other side. (See People v. Reynoso (2003) 31
Cal.4th 903, 926.) We note these figures only to provide context
for the court’s observations.
19
The other prosecution excusals were three White women,
one Asian-American man, one Hispanic man, and one Hawaiian
woman.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Defendants rely on Williams v. Runnels (9th Cir. 2006)
432 F.3d 1102, 1107. While not binding precedent, opinions from
other jurisdictions may provide useful analytical approaches. In
Runnels “the prosecutor used three of his first four peremptory
challenges to remove African-Americans from the jury. In
addition, it appears that only four of the first forty-nine
potential jurors were African-American.” (Ibid.) Defendants
contend the strike rate in this case was greater than the 75
percent seen in Williams v. Runnels, and greater than that in
several other circuit court decisions. (See Paulino v. Castro (9th
Cir. 2004) 371 F.3d 1083, 1090 [83 percent]; Fernandez v. Roe
(9th Cir. 2002) 286 F.3d 1073, 1078 [57 percent removal rate];
Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 812–813 [56
percent]). Defendants are mistaken. As described above, the
strike rate here was 50 percent, not the 75 percent seen in
Williams v. Runnels, or the higher figures in the other federal
decisions. Far more tellingly, in Runnels, the state excluded
three out of four African-Americans, a rate over 9 times20 their
representation among panelists who had been examined. The
numbers here are not nearly as stark. It is true that, when the
motion was made, the district attorney had excused African-
American women at a rate higher than their representation
among those called to the box. That fact certainly is noteworthy,
however context remains informative.
Even a high exclusion rate does not invariably
demonstrate excusals were motivated by discriminatory
animus; other factors may also be relevant. In People v. Sánchez

20
Calculated by dividing the 75 percent strike rate by the
eight percent representation rate, yielding an exclusion rate of
9.4.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

(2016) 63 Cal.4th 411, 439, the prosecution exercised four of 10
peremptory challenges against an identified group, only six of
whom were present in the venire, i.e., a 40 percent strike rate,
and a two-thirds removal rate. (Ibid.) After the defendant
challenged another juror from that group, six of 32 group
members, or 19 percent, remained in the venire, and only one
served on the jury. (Ibid.) Here as in Sánchez the rate of removal
was two-thirds: four of six jurors in that case, and six of nine
here. We also note the 40 percent strike rate in Sánchez was
marginally lower than the 50 percent rate here. Despite these
similar figures, we reasoned in Sánchez that even if the strike
rate “[c]onsidered alone . . . might suggest a discriminatory
purpose,” under the totality of the circumstances, the suggestion
was unsupported. (Ibid.)
While the exclusion rate is important, considered in
context it does not give rise to an inference the excusals were
motivated by racial bias for purposes of our independent
appellate review. (See Parker, supra, 2 Cal.5th at p. 1212.) Here
the prosecution ultimately accepted a jury with four African-
American women, a statistically higher figure than this
subgroup’s representation in the box. “ ‘While acceptance of one
or more black jurors by the prosecution does not necessarily
settle all questions about how the prosecution used its
peremptory challenges, these facts nonetheless help lessen the
strength of any inference of discrimination that the pattern of
the prosecutor’s strikes might otherwise imply.’ [Citations.] We
have previously held that the prosecutor’s acceptance of a jury
panel including multiple African-American prospective jurors,
‘while not conclusive, was “an indication of the prosecutor’s good
faith in exercising his peremptories, and . . . an appropriate
factor for the trial judge to consider in ruling on a Wheeler

45
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

objection . . . .” ’ ” (People v. Johnson (2019) 8 Cal.5th 475, 508;
see also People v. McDaniel (2021) 12 Cal.5th 97, 124 [“Despite
the relatively high rate of strikes against Black jurors at the
time of the motion, the final racial composition of the jury was
diverse and contained more Black jurors than jurors of any other
race”]; People v. Lenix (2008) 44 Cal.4th 602, 610, fn. 6.)
The rate of strikes following a Batson/Wheeler motion is
also a relevant consideration. (See People v. Johnson, supra, 8
Cal.5th at p. 507.) In People v. Reed (2018) 4 Cal.5th 989, 1000–
1001, we explained: “the prosecutor’s decision to strike one black
juror while accepting another who replaced her suggests that
nonrace related differences between the jurors, rather than race,
explain the prosecutor’s actions.” Similarly here, after
defendants’ motion, the female African-American panelist who
had been excused was replaced in the jury box by an African-
American woman who ultimately served as a juror.21 Although
the prosecution excused two African-American women after the
Batson/Wheeler motion, this case is quite different from Miller-
El v. Dretke (2005) 545 U.S. 231, 250, where the prosecution
merely made a “late-stage decision to accept a [single] black
panel member.” After the defendants’ Batson/Wheeler motion
here, the prosecution exercised four peremptory strikes before
passing the jury, leaving 19 strikes unused. 22 As we have

21
Two of the African-American women ultimately seated on
the jury had been members of the panel from an early point in
the jury selection process and were never the subject of a strike.
22
California Code of Civil Procedure, section 231,
subdivision (a) provides that, in a capital case, codefendants are
entitled to 20 joint challenges and 5 individual challenges each,
and the People are entitled to an equal total number. Here the
prosecution used 16 challenges and the defense 15.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

previously concluded, “the fact that the prosecution accepted a
panel with [four African-American female] jurors when it had
enough remaining peremptory challenges to strike them
suggests that the prosecutor did not harbor bias against [the
identified group of] jurors.” (People v. McDaniel, supra, 12
Cal.5th at p. 124.) The prosecution also repeatedly excused
jurors who were not members of the identified group rather than
excusing a number of African-American women then in the box.
Also relevant in dispelling any inference of discriminatory
motive was the prosecutor’s repeated passing of two African-
American women who had been present in the box from nearly
the beginning of the selection process, and who ultimately
served on the jury. (See People v. Clark (2011) 52 Cal.4th 856,
906.) When advocates pass a challenge they evince a willingness
to accept the panel as constituted. The prosecutor here passed
the challenge when the group of 40 panelists seated or excused
contained several African-American women. (See People v.
Reed, supra, 4 Cal.5th at p. 1000.)
We have also observed: the selection of a jury is a fluid
process, with challenges for cause and peremptory strikes
continually changing the composition of the jury before it is
finally empaneled. As we noted in People v. Johnson (1989) 47
Cal.3d 1194: “[T]he particular combination or mix of jurors
which a lawyer seeks may, and often does, change as certain
jurors are removed or seated in the jury box. It may be
acceptable, for example, to have one juror with a particular point
of view but unacceptable to have more than one with that view.
If the panel as seated appears to contain a sufficient number of
jurors who appear strong-willed and favorable to a lawyer’s
position, the lawyer might be satisfied with a jury that includes
one or more passive or timid appearing jurors. However, if one

47
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

or more of the supposed favorable or strong jurors is excused
either for cause or [by] peremptory challenge and the
replacement jurors appear to be passive or timid types, it would
not be unusual or unreasonable for the lawyer to peremptorily
challenge one of these apparently less favorable jurors even
though other similar types remain. These same considerations
apply when considering the age, education, training,
employment, prior jury service, and experience of the
prospective jurors.” (Id. at p. 1220.)
We are mindful that the prosecution’s passing on the jury
as a whole did not occur until after the trial court’s statement to
the parties that, while their use of peremptories had been
proper, the court was aware the defense had accepted the jury
three times. It noted the defense had accepted some White
panelists and excused some African-American panel members,
“seven Black people [were] left on the jury,”23 and the case
involved three African-American defendants. The judge
continued, “In my court I want the appearance of fairness,” and
alerted the parties they were “on notice” that “[t]he appearance
of justice is as important as justice.”
This statement did not immediately follow the
Batson/Wheeler motion. It occurred during the in-chambers
discussion described at page 44, ante. Between the defendants’
motion and the in-chambers statement, several panelists were
excused: a White woman (by the defense); a Hispanic man (by
the prosecution); a for-cause excusal, race not reflected; an

23
The trial court appears to be mistaken about this fact; only
four African-American people, all women, were present on the
jury at the time the court addressed the parties.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

African-American woman (by the prosecution, following defense
acceptance); a Hispanic woman (by the prosecution, following
defense acceptance); an Asian man (by the defense); an African-
American woman (by the prosecution), and a White man (by the
defense).24 After the court’s later in-chambers comment, it
excused one more juror for cause, the defense exercised one
further peremptory challenge and all parties accepted the panel.
The court explicitly noted it considered all the
peremptories exercised by both sides to have been proper. We
need not question the trial court’s perspective in this regard; as
we have noted, in this unique context of review we are required
to consider the record independently. (People v. Rhoades, supra,
8 Cal.5th at pp. 428–429.) Here, the group of seated jurors
included four African-American women, one African-American
man, three White women, two White men, one Hispanic woman,
and one Hispanic man. As noted, the defense did not renew a
Batson/Wheeler motion after the prosecution’s excusals of
Panelist Nos. 107 or 109 or after it had passed on the jury. Nor
did the defense object to the composition of the jury as finally
constituted.

24
The last two African-American women excused were
Panelists Nos. 107 and 109. The former had been seated as a
juror on both felony and misdemeanor cases. These included a
capital case which hung 9–3 in the guilt phase and a child
molestation case the year before this one, which hung 8–4.
Panelist No. 109 was a court clerk in another department. The
judge began the colloquy by saying he knew her well and told
the group about her employment. Neither party asked her any
questions. The defense passed the challenge and the prosecution
excused her. The defense did not object to the use of either
peremptory.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

People v. Battle is instructive by way of contrast. (Battle,
supra, 11 Cal.5th at p. 774.) There, an African-American
defendant was convicted by an all-White jury. His victims were
White and mitigation evidence was offered to prove defendant
was, himself, the victim of life-long discrimination. Here, all
defendants and victims were African-American, as were a
number of witnesses, along with five of the seated jurors. In
Battle, we found the jury’s composition “serve[d] as standalone
evidence to inform our step-one analysis,” and that it was
“particularly germane where the case was racially charged.”
(Ibid.) Even so, in light of the other circumstances, we concluded
the defendant’s “showing [did not] suffice to give rise to an
inference that discriminatory intent motivated [a juror’s]
excusal.” (Id. at p. 775.)
As in People v. Johnson, supra, 8 Cal.5th at page 510,
footnote 7, “[W]e need not resort to examining the record for
obvious race-neutral reasons for the prosecutor’s peremptory
strikes that would ‘ “necessarily dispel any inference of bias.” ’ ”
After independently examining the entire record, including the
trial court’s observations and the final jury composition, we
conclude the court acted within its discretion in denying
defendants’ Batson/Wheeler motion.
2. Evidentiary Issues
a. Admission of Hearsay
Newborn and Holmes argue the court erred in allowing
Bowen’s girlfriend, LaChandra Carr, to relate hearsay when
cross-examined about an inconsistent statement. Carr told the
grand jury she saw Newborn and Holmes at the hospital the
night of the murders. At trial, however, she claimed she spent
the entire night at home with Bowen’s mother. Admitting she

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

told the grand jury something different, she stated: “The truth
is I really wasn’t there.” Asked to explain her prior testimony,
Carr said she “knew they were there from when [Bowen] called
[her] from the hospital. I just knew everyone who was there.”
The court denied defendants’ motion to strike these statements
as hearsay. Instead, it gave a limiting instruction that Carr’s
grand jury statements could be considered only for the purpose
of showing inconsistency with her current testimony.25
During further cross-examination, Carr repeated that
Bowen had called her from the hospital and said Newborn was
also there. The defense moved for a mistrial, arguing this
testimony related double hearsay. The court disagreed,
explaining that jurors would have to decide “whether what she
said is true, whether she was at the hospital” or not. It
instructed, however, that Bowen’s “alleged statements” to Carr
could not be used against any defendant.
Defendants renew their hearsay arguments here. A trial
court’s ruling on the admissibility of evidence, including “on the
hearsay nature of the evidence in question,” is reviewed for
abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690,
725.) The court’s rulings were within that scope.

25
Under some circumstances, a prior inconsistent statement
may be admissible not only for its impeachment value, but for
its truth. (People v. Guerra (2006) 37 Cal.4th 1067, 1144 [“Prior
inconsistent statements are admissible under [Evidence Code
section 1235] to prove their substance as well as to impeach the
declarant]; see Simons, Cal. Evidence Manual (2021) § 2:42, pp.
134–137; CALCRIM No. 318.) That general rule would not apply
here to encompass hearsay statements Carr attributed to
Bowen.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Carr’s testimony to the grand jury was admissible as a
prior inconsistent statement. A witness’s out-of-court statement
“is not made inadmissible by the hearsay rule if the statement
is inconsistent with his testimony at the hearing and is offered
in compliance with [Evidence Code] Section 770.” (Evid. Code, §
1235.) Evidence Code section 770, subdivision (a) in turn,
requires that the witness have “an opportunity to explain or to
deny the [inconsistent] statement” while testifying. Carr’s trial
and grand jury testimony were in direct conflict as to where she
was on Halloween night and what she knew, or did not know,
about the whereabouts of others. She was given an opportunity
to explain the inconsistency. In doing so, she related additional
out-of-court statements from Bowen. Defendants’ complaint,
that these later statements were hearsay, fails because it
appears they were not admitted for their truth. They were,
however, relevant to help the jury evaluate the credibility of
Carr’s attempt to reconcile her inconsistent accounts. She
claimed that she relied on them to infer that Holmes and
Newborn were there and, thus, explain her prior statement. The
trial court gave a limiting instruction admonishing the jury it
could not consider Bowen’s statements “against any defendant.”
Accordingly, Bowen’s statements were not admitted against any
defendant for the truth of their content. They were only to be
considered as to Carr’s credibility.26

26
Defendants also challenge the admission of Carr’s
testimony that Bowen had told her he was present at the Wilson
Street shootings “but he was no driver and he was no shooter.”
They contend this testimony violated Bruton, supra, 391 U.S.
123. The objection was not raised below and is not well taken
now. Bruton addressed “the powerfully incriminating
extrajudicial statements of a codefendant” who is jointly tried
and not subject to cross-examination. (Id. at p. 135; id. at p.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

b. Eyewitness Testimony
Holmes and McClain argue the admission of Gabriel
Pina’s eyewitness testimony violated their rights to due process.
No error appears.
On the night of the shootings, Gabriel Pina saw both the
driver of the lead car racing toward Wilson Street, and a man
who ran from the scene and got into a car. Pina later went to the
police and was shown several photo arrays. He picked a picture
of McClain as the driver in one group of photos but
acknowledged that the photograph showed his head tilted at a
different angle. He was then shown an image of McClain in a
newspaper, “folded . . . up” and “pretty far away,” and confirmed
the identification. Pina also picked Holmes’s photo as the man
who ran to a car after the shooting. He recognized Holmes
because of his facial features and scarring. Defendants each
unsuccessfully moved to suppress these identifications.
To determine whether the admission of identification
evidence violates due process, “we consider (1) whether the
identification procedure was unduly suggestive and
unnecessary, and, if so, (2) whether the identification itself was
nevertheless reliable under the totality of the circumstances,

136.) Here, the jurors knew that not all perpetrators were being
tried together. Indeed, Bowen had been severed from the case
and was not a codefendant. His statement, related during Carr’s
testimony, inculpated only himself. Further, testimony at trial
indicated that multiple cars carrying African-American men
drove through Wilson Street that night, dispelling any inference
that if Bowen neither drove nor shot defendants necessarily did.
There was no reason that Carr’s testimony about Bowen’s
involvement could have prejudiced defendants. For the same
reasons, any error in admitting the testimony was harmless.
(See People v. Watson (1956) 46 Cal.2d 818, 836.)

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

taking into account such factors as the opportunity of the
witness to view the suspect at the time of the offense, the
witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level
of certainty demonstrated at the time of the identification, and
the lapse of time between the offense and the identification.”
(People v. Cunningham (2001) 25 Cal.4th 926, 989; Manson
v. Brathwaite (1977) 432 U.S. 98, 104–107; Neil v. Biggers (1972)
409 U.S. 188, 199–200.) We note, however, that in a recent
decision evaluating the propriety of a jury instruction
concerning witness certainty, we observed “[t]here is [now] near
unanimity in the empirical research that ‘ “under most
circumstances, witness confidence or certainty is not a good
indicator of identification accuracy.” ’ ” (People v. Lemcke (2021)
11 Cal.5th 644, 665.) A procedure is unfair if it suggests in
advance the identity of the person police suspect. (People v.
Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa).) We defer to the trial
court’s factual findings but independently review its
determination whether an identification procedure was unduly
suggestive. (People v. Gonzalez (2006) 38 Cal.4th 932, 943.)
Reversal is not warranted unless there is a “substantial
likelihood of irreparable misidentification.” (Manson, at p. 108.)
“In other words, ‘[i]f we find that a challenged procedure is not
impermissibly suggestive, our inquiry into the due process claim
ends.’ ” (Ochoa, at p. 412.)
Holmes first challenges the procedure because the photo
arrays shown to Pina included two photographs of him. The
photographs showed Holmes at different ages and with different
haircuts, however. Pina selected only one of the photographs,
failing to identify Holmes in the other. Holmes also contends the
procedure was unduly suggestive because Pina initially made

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

only a hesitant identification of McClain, which he did not
confirm until after he was shown a newspaper photograph. 27
Pina contacted police after seeing the photo of a different
suspect on television. He then looked through six six-packs of
photographs, attempting to identify that other suspect. During
the process, he saw Holmes’s image, recognizing his distinctive
facial features and scarring. Pina got a good look at Holmes the
night of the shooting and saw him clearly. (See People
v. Cunningham, supra, 25 Cal.4th at p. 989.) He was especially
attentive to the men he saw given the unusual situation. He
gave an accurate description of the suspects’ hairstyles and
distinctive features. The challenged procedure was not unduly
suggestive, and it is not substantially likely that Pina
misidentified Holmes, particularly in light of all the additional
evidence. (See Manson v. Brathwaite, supra, 432 U.S. at pp.
104–107; Ochoa, supra, 19 Cal.4th at p. 412.)
McClain raises similar arguments. He contends the array
shown to Pina was unduly suggestive because, in the group
containing his picture, his photograph was darker than the
others and he was the only person with a gold chain and long
hair. The argument fails. In the six different photo arrays Pina
viewed many men had long hair, including two in the six-pack
with McClain’s photo. McClain also asserts the police showed
Pina a newspaper photo of him before the photographic array.
This assertion is contradicted by Pina’s grand jury testimony.

27
Holmes asserts that Pina made no identification when he
spoke to police on the night of the murders. In fact, he was never
asked to do so. Pina described the several cars that drove past,
but officers did not ask whether he could recognize any of the
drivers.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Pina testified he saw the newspaper photo after he saw McClain
in the lineup. Pina recognized a photograph in the array but
could not be certain of the identification because the man’s face
was tilted at a different angle than the man Pina saw. The six-
pack photograph also showed McClain’s hair in a ponytail, but
when Pina saw him his hair was loose. After Pina explained
these factors to investigators, he was shown the newspaper
photo, and immediately identified McClain.
The trial court did not err in denying McClain’s
suppression motion. “[F]or a witness identification procedure to
violate the due process clauses, the state must, at the threshold,
improperly suggest something to the witness — i.e., it must,
wittingly or unwittingly, initiate an unduly suggestive
procedure. Due process does not forbid the state to provide
useful further information in response to a witness’s request, for
the state is not suggesting anything.” (Ochoa, supra, 19 Cal.4th
at p. 413, italics added.) Ochoa addressed analogous
circumstances. The witness in Ochoa asked to see a suspect’s
profile after identifying him with some uncertainty from a
photographic lineup. (Id. at p. 412.) She was shown a single
image of Ochoa in profile but not shown profile views of any
other individuals whose pictures were in the lineup. (Ibid.) She
then confirmed her identification. We found no unfairness in the
procedure because it did not suggest in advance of the witness’s
identification the identity of the person suspected by the police.
(Id. at p. 413.) The same is true here. Pina was shown an
additional image of McClain only after he had selected
McClain’s photo. Indeed, the newspaper photograph here was
shown alongside other images, though Pina only paid attention

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

to McClain’s because it was the image he recognized.28 As in
Ochoa, police did not suggest McClain’s identity before Pina
identified him. (Id. at p. 413.)
Moreover, even if the procedure had been flawed, the
evidence was nevertheless admissible because this particular
identification was reliable under the totality of the
circumstances. (See Manson v. Brathwaite, supra, 432 U.S. at
pp. 104–107.) As with Holmes, nearly all considerations support
reliability. Pina testified that he had a clear view of McClain
because McClain drove up and down the street and stopped
directly under a streetlamp. Pina paid attention to the suspects
because of their odd behavior. McClain’s driving maneuvers, in
particular, were unusual. Pina described him as
“literally . . . reaching over the steering wheel to see” Pina and
his companion. Before the shooting began, Pina told his
girlfriend to hide if “something happens” and kept his focus on
the cars. Although Pina identified McClain one or two months
after the crimes, there was no indication the passage of time
impaired his ability to recall the events or make an
identification. Finally, Pina made “eye-to-eye” contact with
McClain, knew the angle of McClain’s head and the long, loose
hairstyle he wore on the night of the murders, and observed how
those particulars differed in the photographs he was shown. The
defense was able to thoroughly cross-examine Pina and delve
into factors bearing on the reliability of his identifications.

28
It is not clear whether the other images displayed in the
newspaper shown to Pina were of suspects involved in the
Halloween shooting. The photograph was not offered into
evidence by any party.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Accordingly, the jury was well able to properly consider the
weight to give them.
c. Admission of Inflammatory Evidence
Defendants raise two challenges to the admission of
evidence about their uncharged misconduct. The governing law
is settled.
“ ‘Character evidence, sometimes described as evidence of
propensity or disposition to engage in a specific conduct, is
generally inadmissible to prove a person’s conduct on a specified
occasion. (Evid. Code, § 1101, subd. (a).) Evidence that a person
committed a crime, civil wrong, or other act may be admitted,
however, not to prove a person’s predisposition to commit such
an act, but rather to prove some other material fact, such as that
person’s intent or identity. (Id., § 1101, subd. (b).)’ ” (People v.
Leon (2015) 61 Cal.4th 569, 597.) “The relevance depends, in
part, on whether the act is sufficiently similar to the current
charges to support a rational inference of intent, common
design, identity, or other material fact.” (Id. at p. 598.) The
greatest degree of similarity is required to show identity, which
requires proof of enough distinctive features in common with the
charged offense to support the inference that the same person
committed both acts; the least similarity is necessary to
demonstrate intent. (Ibid.)
The next step is an evaluation of the evidence’s prejudicial
impact. (See Evid. Code, § 352.) “ ‘If evidence of prior conduct is
sufficiently similar to the charged crimes to be relevant to prove
the defendant’s intent, common plan, or identity, the trial court
then must consider whether the probative value of the evidence
“is ‘substantially outweighed by the probability that its
admission [would] . . . create substantial danger of undue

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

prejudice, of confusing the issues, or of misleading the jury.’ ” ’ ”
(People v. Leon, supra, 61 Cal.4th at p. 599.) The trial court’s
decision whether to admit uncharged misconduct evidence is
reviewed for abuse of discretion. (Id. at p. 597.)
i. Unadjudicated Arrest
McClain contends the court erred and violated his
constitutional rights in admitting evidence that on September
12, 1992, he was arrested with Bowen for weapon possession.29
Any asserted error was harmless.
The prosecution offered the evidence to demonstrate
McClain’s connection with other codefendants more than a year
before the charged crimes. In particular, he argued the arrest
showed McClain and Bowen had access to weapons. McClain
countered that the arrest was for a different crime and involved
different weapons from those used in the Halloween shootings.
He offered to stipulate that he and Bowen were acquainted. The
court admitted the evidence, explaining it was relevant, in part,
to show McClain’s access to weapons.
We need not discuss the merits of defendant’s challenge.
Even if we were to find error, admission of the evidence was not
unduly prejudicial. A consideration of impermissible prejudice
that might flow from otherwise relevant evidence evaluates how
inflammatory the uncharged act is when compared to those
charged. Whether the uncharged act was not previously
adjudicated is also a relevant consideration. (People v. Ewoldt
(1994) 7 Cal.4th 380, 405.) McClain’s weapons possession arrest

29
McClain’s related claim that the prosecutor committed
misconduct during closing argument by referencing his
unadjudicated arrest is addressed post, at pages 84 to 85.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

was far less inflammatory than the murders here. (Ibid.) Any
prejudicial impact of the evidence was further dissipated by the
jury instructions that the uncharged act could not to be
considered as proof of McClain’s bad character or criminal
disposition.
ii. Gang Evidence
Holmes and McClain also challenge the admission of
evidence regarding gang affiliation. Although conceding some of
this evidence was relevant, they contend the quantity and
emotional impact of the gang evidence was unduly prejudicial
depriving them of a fair trial and due process. The evidence was
properly admitted.
Holmes complains the evidence connecting him with the
P-9 gang was more tangential than that offered against his
codefendants. However, Mario Stevens identified him as a P-9
member , and Derrick Tate testified that Holmes wore a hat that
said “P-9.” There was some contrary evidence, including
McClain’s testimony that Holmes was not a member of the gang.
However, the jury was equipped to weigh all the testimony and
decide the question for itself.
McClain did not dispute his membership. Instead, he now
argues the introduction of gang evidence against him was
cumulative and unduly prejudicial. McClain did not lodge an
objection on this basis at trial. Throughout the briefing
defendants raise a number of claims that were not preserved
below. The general rule is that a failure to object in the trial
court waives the right to asset error on appeal. 30 (See People v.

30
For examples of exceptions to this general rule see ante,
page 19, footnote 9.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Dykes (2009) 46 Cal.4th 731, 756 (Dykes).) However,
particularly in capital cases, we often choose to address even a
waived claim on the merits. Here we will not repeat the general
rule in each instance in order to avoid tedious repetition. We will
note any failure to object at trial and cite authority for the
waiver rule. By noting that state of the record, and citation to
supporting authority, we invoke the general waiver principle.
McClain’s lately-asserted challenge also lacks merit.
Although evidence of gang membership carries the potential for
prejudice, it “ ‘is often relevant to, and admissible regarding, the
charged offense. Evidence of the defendant’s gang affiliation —
including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries,
and the like — can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.’ ” (People v. Becerrada
(2017) 2 Cal.5th 1009, 1022.) Given the circumstances of the
shootings, which were clearly intended as gang retaliation,
defendants’ membership was highly relevant to prove their
involvement, motive, and intent to kill. The prosecution had a
right to present the evidence, notwithstanding McClain’s failure
to contest it.
Defendants also claim the court abused its discretion in
allowing witnesses to testify about gang-related threats.
DeSean Holmes told the jury he was afraid to testify because his
life had been threatened. He described threats made to his
mother, coach, and others. Derrick Tate testified about threats
to his mother and grandmother and admitted he feared for his
own safety. Willie McFee gave similar testimony. He had
received death threats over a year and a half and believed they
came from gang members. The prosecution also played a tape in

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

which McFee told police about receiving anonymous,
threatening phone calls.
Defendants objected to some of this evidence on hearsay
grounds but did not raise an objection under Evidence Code
sections 1101 or 352.31 The claims are both forfeited (Dykes,
supra, 46 Cal.4th at p. 756) and meritless. “Evidence that a
witness is afraid to testify or fears retaliation for testifying is
relevant to the credibility of that witness and is therefore
admissible.” (People v. Burgener (2003) 29 Cal.4th 833, 869; see
Simons, Cal. Evidence Manual, supra, § 3.47, pp. 290–291.)
Testimony about threats the witnesses and their family
members received also supported the prosecution’s theory that
the shootings were committed by gang members and motivated
by gang-related concerns. These were legitimate purposes. The
evidence’s probative value was not outweighed by any undue
prejudice to defendants. The testimony was not particularly
inflammatory, and the witnesses did not identify the people, or
even the gang, making the threats.
Finally, Holmes and McClain argue expert Derrick
Carter’s testimony about gangs, in particular a list of P-9 gang
members, was irrelevant and inflammatory. Neither objection
was raised below (Dykes, supra, 46 Cal.4th at p. 756), and the
forfeited claims would fail on the merits. Evidence about gang
activity, and the defendants’ gang membership, was highly
relevant given the apparent gang-related motivation for the

31
Defendants do not renew their hearsay arguments here.
After the objection to Tate’s testimony, the court admonished
the jury that statements about his motivation for testifying were
not offered for truth and could be considered only with regard to
his state of mind.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

murders. The court did not abuse its discretion in admitting
expert testimony on the subject. Defendants’ criticisms about
the content of Carter’s testimony address the weight of that
evidence, not to its admissibility. The jury was entitled to
consider this evidence, along with Carter’s credibility, and was
properly instructed how to do so. (See CALJIC No. 2.20.)
d. Restrictions on Cross-Examination
i. DeSean Holmes
Newborn alleges his rights to due process and
confrontation were violated on five occasions when he was not
permitted to cross-examine DeSean Holmes as fully as he
wished. Holmes and McClain join these claims but assert no
additional arguments of their own. The rulings were within the
court’s discretion. Considered individually and cumulatively,
these reasonable limits on cross-examination did not infringe
defendants’ constitutional rights.
Newborn first claims he was prevented from questioning
DeSean about a prior arrest. In February 1995, DeSean
burglarized Willie McFee’s home. By the time DeSean was
arrested for the burglary two months later, he was already
incarcerated for a separate, unspecified offense. After DeSean
testified to these facts, the court sustained an objection to
further questioning about the offense for which DeSean was
incarcerated without an offer of proof as to relevance. None was
made, and Newborn’s attorney moved to a different line of
inquiry. Newborn now complains further cross-examination
would have demonstrated the nature and magnitude of
DeSean’s bias. But his failure to make an offer of proof as to the
impeachment evidence that might have been elicited, despite
the court’s express invitation to do so, forfeits the issue on

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

appeal. (See People v. Valdez (2004) 32 Cal.4th 73, 108.) Nor is
there any suggestion such an offer would have been futile.
Indeed, the court solicited additional information to assist its
evaluation. Newborn offered none below and does not do so here.
The court reasonably exercised its discretion (People
v. Quartermain (1997) 16 Cal.4th 600, 623) to limit cross-
examination on a witness’s unrelated prior offense, particularly
when presented with no additional offer of proof or further
argument.
Newborn next claims he was unable to explore whether
DeSean tried to gain favor with law enforcement by falsely
attributing a double homicide to Danny Cooks and Ernest
Holly.32 Newborn tried to show that DeSean identified Cooks
and Holly because he was dating Holly’s ex-girlfriend. Yet the
record demonstrates Newborn was able to elicit precisely the
testimony he sought. After a relevance objection, Newborn
rephrased his question and DeSean testified that he had been
dating Holly’s ex-girlfriend around the time he implicated Cooks
and Holly in the homicides. Newborn complains he was
prevented from seeking further details but identifies no ruling
that so limited him. More importantly, he fails to explain how
additional information about the relationship would have been
probative. The essential facts establishing DeSean’s asserted
motive to falsely accuse someone else of murder were before the
jury.
Newborn’s third allegation of deficient cross-examination
concerns DeSean’s testimony about another shooting. In

32
Cooks and DeSean were connected in criminal activity
unrelated to this case. Holly was one of the men Tate accused of
participating in the Halloween shootings.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

response to Newborn’s questioning, DeSean said he sought
protective custody in September 1995 because he “was the
victim of a shooting.” Newborn elicited extensive testimony
about the case, with DeSean twice asserting he was a “victim.”
In concluding this line of questioning, Newborn asked, “just for
clarification, so you don’t mislead the judge, the shooting case
where you say you were the victim, nobody shot at you, did
they?” DeSean replied, “Yes.” The court denied a motion to
strike but precluded further questioning on the subject. The
next day, Newborn made an offer of proof that DeSean was not
a victim but instead drove the car from which shots were fired,
although he did not know his passenger intended to shoot. The
shooting victim was DeSean’s close friend. The prosecutor
explained that DeSean felt victimized because he was surprised
by the passenger’s assault on his friend. The court repeated that
the incident could not be probed further but noted the parties
could stipulate DeSean was not a victim. This ruling was proper.
The court “ ‘retains wide latitude in restricting cross-
examination that is repetitive, prejudicial, confusing of the
issues, or of marginal relevance.’ ” (People v. Linton (2013) 56
Cal.4th 1146, 1188.) Newborn made his point that DeSean was
not the target of gunfire, despite having characterized himself
as a victim. Further questioning on this unrelated incident, and
why DeSean may have felt victimized, would have consumed
time on matters that were only marginally relevant. Because
Newborn has not shown that the prohibited cross-examination
would have produced “ ‘a significantly different impression of
[DeSean’s] credibility,’ ” there was no Sixth Amendment
violation. (People v. Williams (2016) 1 Cal.5th 1166, 1192.)
Next, Newborn claims he could not examine DeSean
sufficiently about an alleged carjacking and the murder of

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

Majhdi Parrish, a witness to that offense. DeSean claimed he
was afraid to testify because Parrish had been killed after
testifying in a carjacking case, and Newborn wanted to elicit
that DeSean himself had committed the carjacking. The court
ruled both sides could ask about the incident. Although
DeSean’s attorney had warned that DeSean would invoke his
Fifth Amendment privilege if asked about the carjacking,
Newborn pursued this line of questioning nevertheless. When
DeSean said he had heard of witnesses being killed, Newborn
asked if Majhdi Parrish was that witness. DeSean invoked the
Fifth Amendment. The court overruled his privilege claim and
instructed him to answer. DeSean testified that he had heard
about Parrish’s death. Newborn’s attorney then sought to ask
whether DeSean was “innocent or guilty” of the carjacking,
whether he was concerned about Parrish’s death, and whether
Parrish was a “complaining victim.” Objections were sustained
to each question after DeSean again invoked his Fifth
Amendment privilege. Newborn complains these rulings
prevented him from establishing DeSean’s motive to help the
prosecution and avoid liability for the crime against Parrish.
The claim fails because Newborn’s assertions were refuted by
other testimony. Detective Brown testified that Parrish had
been killed while DeSean was in custody and DeSean was not a
suspect in that homicide. The evidence showed DeSean’s single
felony conviction was for the burglary of McFee’s home. To the
extent Newborn hoped to show that DeSean was responsible for
Parrish’s death, the record is to the contrary. It is not evident
that further questioning on these matters would have yielded
useful impeachment evidence. No confrontation error occurred.
(See Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.)

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
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Finally, Newborn claims the court prevented him from
adequately addressing DeSean’s civil lawsuit against the
Pasadena Police Department. DeSean testified that he was not
honest in his initial police interview because he did not believe
the department was trustworthy and he had a lawsuit pending
against it. Newborn now complains he should have been allowed
to demonstrate DeSean’s motive to somehow advance this civil
suit by testifying for the prosecution. It appears Newborn
adequately covered the point. Although the prosecution twice
objected to questions on this topic, the questions were rephrased
and DeSean gave answers. Newborn’s counsel chose to move on.
Even if more questions had been asked, it is not clear what
additional evidence could have been adduced. DeSean was
unclear about the nature of the lawsuit, its existence, or the
identity of his attorney. Had such a suit been filed, it would be
a matter of public record. But no offer of proof was made in that
regard. The cross-examination was sufficient, and Newborn
suffered no constitutional deprivation in connection with it.
ii. Robert Price
McClain argues the court improperly prevented him from
asking Robert Price about a prior arrest. Price testified that
McClain shot him in the face and back at the Community Arms
apartment complex. He agreed on cross-examination that he
was given $200 before his grand jury testimony but explained
the money was for his travel and medical expenses. He also
received $100 to pay for a medical evaluation of whether a bullet
could be removed from his leg, potentially producing ballistics
evidence. On redirect, Price was asked about his motivations for
testifying. He responded that he knew one victim’s parents. The
killings had “touched” him, and he wanted to see those
responsible convicted. On recross-examination, McClain sought

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Opinion of the Court by Corrigan, J.

to elicit whether Price had been arrested for lewd and lascivious
conduct on a minor. The court sustained a prosecution objection
and prohibited further questioning about Price’s arrest. This
ruling was within its discretion.
A trial court abuses its discretion when it acts arbitrarily,
capriciously, or absurdly, causing a miscarriage of justice.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The court’s
decision here was measured. The prosecutor and McClain’s
attorney agreed that “an arrest is [not] evidence of anything.”
After hearing from the parties, the court considered the question
and reasonably concluded Price’s testimony did not open the
door to impeachment questions based on an unrelated arrest.
Moreover, Price had been amply impeached. In addition to
describing the money he received before his grand jury
testimony, Price admitted convictions for five felonies and
membership in the Crips gang. He testified that he had been
drinking on the day he was shot and initially lied to police about
the shooter’s identity because he wanted to retaliate personally.
Additional inquiry into an unadjudicated arrest would have
added little to these substantive admissions.
McClain also argues the ruling violated his right to
“effective” confrontation, citing Davis v. Alaska (1974) 415 U.S.
308, 318. He argues for the first time here that testimony about
Price’s arrest could have illuminated why Price wished to
implicate McClain, or why McClain shot Price. McClain had an
opportunity to make an offer of proof at trial and did not do so.
Indeed, his attorney agreed with the prosecutor that, absent an
offer of proof, it was improper to impeach Price with the arrest.
McClain now argues the court created a confrontation problem
by permitting the prosecutor to elicit that Price was friendly
with a victim’s parents and wanted to see retribution for the

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Opinion of the Court by Corrigan, J.

child’s murder. However, McClain could have cross-examined on
this point but chose not to. There was no confrontation violation.
e. Witness Sequestration
Holmes and Newborn raise several claims regarding the
overnight sequestration of prosecution witness LaChandra
Carr. We reject them.
i. Background
As noted, Carr’s trial and grand jury testimony differed.
She told the grand jury that she saw Newborn and Holmes at
the hospital the night of the murders. At trial she disavowed
those statements and denied being there. Carr’s trial testimony
was also evasive. She said she was contacted by police “a
hundred million times,” yet she claimed to “remember nothing”
about those conversations and refused to give direct answers
about her previous statements. 33 Eventually, the court
interrupted the questioning and admonished Carr that “three
young men are facing the death penalty.” The court continued,

33
For example, questioned about one statement, Carr
testified:
“A: I said that?
“Q: Do you recall using those words?
“A: No.
“Q: Do you want to look at the transcript of what you
said?
“A: It have to be there if you said it, but I don’t
remember saying it.
“Q: You don’t remember saying those words?
“A: No.
“Q: Well, could you have said those words?
“A: I probably have.”

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“These jurors are here, these lawyers are doing their job and you
think this is cute, so I will tell you what — .” Carr interrupted,
asking, “How is it cute when I am telling the truth?” The court
responded, “Listen to me: I will put you in jail. What we are
going to do, we will stop the proceedings tonight. You think
about how cute these proceedings are.”
Outside the presence of the jury and defendants, the court
held a hearing with all counsel to determine whether to detain
Carr overnight, noting there was reason to think she would not
return to court in the morning. Addressing Carr, the court
explained, “This is a very serious case. You don’t think it is. I do,
and so what I am going to do is keep you in custody and make
sure you return tomorrow. [¶] If you think you are helping either
side here, you’re not. What you are doing is acting like this is for
you. [¶] . . . The defendants’ lives are at stake and we have . . .
three people who are already dead. [¶] . . . [Y]ou are sitting there
acting like you don’t care and you don’t want to answer any
questions, and I am not going to tolerate it.” Finding good cause,
the court ordered Carr into the custody of District Attorney
investigators to be secured as a material witness. Carr “was
placed in a motel” overnight and finished her testimony the next
day.
ii. Discussion
Holmes and Newborn first contend Carr’s sequestration
violated section 1332 because there was insufficient cause to
believe she would fail to appear.34 They assert the detention

34
Section 1332 provides, in pertinent part, that “when the
court is satisfied, by proof on oath, that there is good cause to
believe that any material witness for the prosecution or defense
. . . will not appear and testify . . . the court may order the

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likely coerced Carr into giving testimony favorable to the
prosecution. Defendants lack standing to assert violations of
another person’s statutory or constitutional rights.35 (People v.
Boyer (2006) 38 Cal.4th 412, 444.) Accordingly, we evaluate any
coercive effect of the detention not by determining whether
“some constitutional transgression” occurred against Carr, but
by assessing whether some misconduct improperly affected the
nature of her testimony. (Ibid.) This determination is based on
the entire record, with deference to the trial court’s credibility
determinations where supported by substantial evidence. (Ibid.)
Holmes and Newborn cite no evidence of coercion, and our
independent review reveals none. Carr’s own testimony belies
the assertion. Returning to court the next day, Carr again
repudiated her grand jury testimony. She explained that she
had not been at the hospital and did not know why she had ever
said defendants were there. She could only surmise that she
thought they were present based on Bowen’s phone call. This
testimony favored the defense, not the prosecution.
Defendants also argue their absence from the detention
hearing was reversible error. A criminal defendant has federal
and state constitutional rights to be present at a critical stage of

witness to enter into a written undertaking to the effect that he
or she will appear and testify at the time and place ordered by
the court or that he or she will forfeit an amount the court deems
proper.” (§ 1332, subd. (a).) “If the witness required to enter into
an undertaking to appear and testify . . . refuses compliance
with the order . . . the court may commit the witness . . . to the
custody of the sheriff.” (§ 1332, subd. (b).)
35
We note that a witness’s mere evasiveness does not
constitute good cause under section 1332, and, to the extent the
trial court based its decision solely on her evasiveness, it acted
improperly.

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the proceedings. (People v. Perry (2006) 38 Cal.4th 302, 311.)
The proceeding must be “critical to the outcome of the case,” and
the defendant’s presence must “contribute to the fairness of the
proceeding.” (Id. at p. 312.) Neither condition was met here.
First, Carr’s detention hearing was not critical to the case and
in fact, had no bearing on its outcome. Defendants do not
attempt to show otherwise. They focus instead on the second
requirement, arguing that because they were personally
acquainted with Carr they could have advised their attorneys as
to how the hearing was likely to make her favor the prosecution.
This argument fails as well. As discussed, Carr did not change
her testimony in any way that favored the prosecution. Further,
“a defendant may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the
outcome of the case, because the defendant’s presence would not
contribute to the fairness of the proceeding.” (Ibid.) Defendants
point to nothing in the record to suggest their attorneys were
not fully equipped to detect or respond to any potentially
coercive aspects of the hearing. No specialized knowledge of this
witness was necessary for counsel to represent their clients’
interests. Accordingly, defendants’ absence from the hearing
resulted in no error.
3. Sufficiency of Evidence
Each defendant makes multiple challenges to the
sufficiency of the evidence supporting his convictions. When
considering such a challenge, “ ‘we review the entire record in
the light most favorable to the judgment to determine whether
it contains substantial evidence — that is, evidence that is
reasonable, credible, and of solid value — from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” (People v. Edwards (2013) 57 Cal.4th

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Opinion of the Court by Corrigan, J.

658, 715, quoting People v. Lindberg (2008) 45 Cal.4th 1, 27.)
We consider “ ‘whether . . . any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.’ ” (Edwards, at p. 715, quoting Jackson v. Virginia (1979)
443 U.S. 307, 319.) “[A] reviewing court ‘presumes in support of
the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” (Edwards, at p. 715,
quoting People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same
standard of review applies to the sufficiency of the evidence
supporting special circumstance findings. Substantial evidence
supports each of the convictions.
a. Attempted Murder of Price
McClain argues his conviction for the attempted murder
of Robert Price cannot stand because it was based entirely on
unreliable testimony from Price, “a Crip gang member and
convicted felon who never told the same story twice.” Price
testified that McClain approached him at the Community Arms
apartment complex, used a gang-related slur, and shot him. He
explained that he did not identify McClain when interviewed by
police that evening because he had hoped to retaliate against
McClain directly. Price’s credibility was a matter for the jury to
assess, and a reasonable trier of fact could have credited his
testimony. Indeed, McClain conceded that he was at the
Community Arms complex the night Price was shot. McClain’s
closing argument featured the same attacks on Price’s
credibility he now makes on appeal. The jury heard, and
apparently rejected them.36

36
McClain also argues the attempted murder conviction
cannot form the basis of his death sentence in light of the special
need for reliability in capital sentencing. Because we have

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Opinion of the Court by Corrigan, J.

b. Conspiracy
Holmes and McClain argue there was insufficient
evidence of their conspiracy to commit murder. “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.” (People v. Morante (1999) 20 Cal.4th 403, 416;
People v. Johnson (2013) 57 Cal.4th 250, 257.) Defendants
challenge the evidence supporting both the agreement and overt
act requirements. The evidence was sufficient.
Both defendants assert the prosecution improperly relied
on their gang membership in lieu of proving a conspiracy.
Standing alone, a gang’s general agreement to fight rivals may
not suffice to support a particular conspiracy charge (see U.S.
v. Garcia (9th Cir. 1998) 151 F.3d 1243, 1247). Here, the
prosecution presented ample evidence that violence against the
victims was both prearranged and carried out.
Holmes does not dispute that he went to the hospital after
learning Fernando Hodges had been shot. He argues his mere
presence there was insufficient to show that he entered a
conspiracy. But the evidence was more extensive. The jury
heard testimony that a crowd of 20 to 30, which included
Holmes, had gathered. Most appeared to be gang members.
They were quiet, seemed to be awaiting instruction, and did not
attempt to go inside the hospital as ordinary visitors would do.

concluded no error infects the attempted murder conviction,
nothing about this conviction requires reversal of McClain’s
death sentence.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
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The prosecution argued a plan was formulated in this group to
avenge Hodges’s death by killing Crips. After the crimes,
Holmes told Derrick Tate that he and others committed the
Wilson Street murders in retaliation for the Hodges shooting.
This evidence was sufficient to support a finding that Holmes
entered an agreement to find and harm members of the Crips
gang. (See People v. Morante, supra, 20 Cal.4th at p. 416.)
McClain challenges the evidence supporting his entry into
a conspiracy because, unlike Holmes, he was not at the hospital
after Hodges’ shooting. Even so, substantial evidence supports
the jury’s conclusion that McClain joined in an agreement to
commit the crimes and did so. (See People v. Morante, supra, 20
Cal.4th at p. 416.) McClain testified that even before Hodges
was taken to the hospital, he heard Hodges had been shot by
“some Crips.” While others gathered at the hospital, McClain
paged his fellow P-9 members, alerting them that he planned to
search for Crips to shoot. McClain now argues his assertedly
lone search for Crips to harm does not support a finding of
conspiracy. The jury may not have credited his testimony,
however, in light of evidence that he was with those involved in
the Wilson Street shooting. Eyewitness Gabriel Pina testified
that he saw McClain peering through the front window of one of
the four cars involved in the shooting. The same eyewitness saw
Holmes return to his nearby car after the shots were fired.
Shortly thereafter, McClain bragged that he and others had “put
in some work” on some Crips at Wilson Street. The evidence
showed McClain intended to go out that Halloween night to kill
Crips, informed fellow gang members of that plan, and
ultimately rode around with them looking for victims. These
facts support a finding of conspiracy to commit murder, as the
jury concluded.

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Holmes and McClain also argue there is insufficient
evidence of an overt act. “Under our statute, an agreement to
commit a crime, by itself, does not complete the crime of
conspiracy. The commission of an overt act in furtherance of the
agreement is also required.” (People v. Johnson, supra, 57
Cal.4th at p. 259.) There was evidence of multiple overt acts.
At some point during the evening, Newborn went to
McFee’s house looking for known Crips member “Crazy D.” A
bulge beneath his clothing suggested Newborn was armed.
McFee saw four men running down the street, followed minutes
later by several gunshots. Some shots appeared to come from
near Crazy D’s home, and one struck McFee’s own residence.
McFee’s testimony was corroborated by his roommate, Charles
Baker, and by physical evidence, including shell casings found
in front of McFee’s house and across the street. Ballistics
evidence linked the ammunition used in this shooting with that
used on Wilson Street. Newborn also told DeSean Holmes that
he shot at McFee’s house with a nine-millimeter Glock,
consistent with the shell casings found there. 37
Nevertheless, defendants contend the jury could not
properly have found that they were involved in a 9:00 p.m.
shooting at McFee’s home because emergency call reports did
not log a shooting complaint from that location until 1:00 a.m.
They insist the McFee shooting could not have been in
furtherance of the Wilson Street attack because it happened
later. This argument fails. An officer testified that the log
reflects when the call was made. But the log does not indicate
when the shots complained of were actually fired. It does not

37
Although DeSean claimed to have no direct memory of this
conversation at trial, he told police about it when interviewed.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.

necessarily correlate with the time shots were fired. Baker, who
was present at McFee’s home, testified that the shooting
happened around 9:00 p.m. He recalled it was “fairly early” in
the evening because McFee’s son was still awake. The jury could
have credited this testimony and rejected the contrary timing
suggested by the call log.
Additional evidence of overt acts was presented in
testimony about the Wilson Street shootings. Four or five cars
sped past the victims. Each car contained several Black men
who displayed P-9 gang signs. One shooting victim wore a blue
bandana, which caused defendants to mistake the group for
Crips.38 McClain told Mario Stevens that he and others had shot
Crips on Wilson Street.39 The Wilson Street shooters fired from
behind bushes. When Holmes told Derrick Tate he had
committed a murder to avenge Hodges’s death, he said he had
jumped from some bushes, yelled, “Trick[-]or[-]treat,” and began
firing. One of the victims heard an assailant say, “Now, Blood,”
the same epithet Robert Price testified McClain had used during
the attempted murder three days earlier. The jury could have
reasonably credited this evidence, which is sufficient to

38
Other victims wore or carried black bandanas, not
associated with the Crips gang.
39
Immediately after Stevens so testified, McClain said, “You
are a lying ass piece of shit, man. You are lying through your
teeth, man.” The court advised McClain that he would have an
opportunity to cross-examine the statement and present
evidence, if he wished, to challenge that testimony. The
prosecution requested the court admonish the jury to disregard
the outburst, and the court advised the jury that McClain’s
statements were “not evidence at this time.”

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demonstrate that the conspirators committed overt acts. (See
People v. Johnson, supra, 57 Cal.4th at p. 259.)
c. Wilson Street Murders and Attempted Murders
Holmes and McClain argue insufficient evidence
supported their convictions for the murders and attempted
murders on Wilson Street.40 The evidence was sufficient.
A number of witnesses connected Holmes and McClain to
both planning and motive. Their friend and fellow gang member
had been killed earlier that night by a rival gang. McClain
testified that he called P-9 members to tell them he intended to
seek revenge. Although the victims were children, not Crips, one
of them had a blue bandana, a Crips symbol, visible in his pocket
when defendants saw them. Holmes concedes he was at the
hospital where Hodges was taken and where a number of people,
including Newborn and Bowen, gathered to discuss retaliation.
Eyewitness Pina connected both Holmes and McClain to
the Wilson Street shooting. A car drove up and idled near Pina
who got a good look at the driver and later described him. The
lead car then drove toward the remaining cars and someone
from the crowd spoke to the driver. Shots erupted moments
later. Afterward, Pina saw Holmes run toward the parked cars.
Some days later, he went to the police station and identified
McClain as the driver of the lead car and Holmes as one of the
men who ran to the parked cars after the shooting.

40
The jury was properly instructed on first-degree murder
(CALJIC No. 8.20) and attempted murder (CALJIC No. 8.66).
Specifically, the jury was instructed that attempted murder
required proof of a “direct but ineffectual act” done by a person
in an effort to kill another, with “malice aforethought,” meaning
“a specific intent to kill.”

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Evidence of defendants’ statements also tied them to the
crimes. Derrick Tate testified that Holmes also bragged about
having been involved in the shooting, saying he wanted to get a
hat made to commemorate the event. Holmes had confessed his
involvement to Tate, explaining the details of the crime and its
vengeful purpose. The day after the shooting, McClain told
Mario Stevens “him and his homeys had went down there on
Wilson and shot some — some Crips.”
McClain’s actions after the crimes also pointed to his
involvement. His cousin, James Carpenter, told police McClain
had talked about committing the murders and became nervous
upon learning the victims had been children. Thereafter,
McClain cut his hair and left town, telling a fellow passenger he
was flying under a fake name and had recently cut his hair. The
passenger recalled his ticket was under the name Robert, with
a last name like McCain or McClain, though he had given her a
pager number with the name “Herb.”
Finally, defendants raise a number of additional
sufficiency arguments. All fail. McClain asserts his conviction is
based on informant testimony given after deals were made. This
fact alone does not render the evidence deficient. The jury was
aware of agreements but remained entitled to credit the
testimony. Holmes asserts that LaChandra Carr’s testimony
failed to connect him with the Wilson Street shooting because,
although he was at the hospital gathering, no evidence indicates
he spoke with Newborn and Bowen or formed a plan to retaliate
for Hodges’s death. However, the jury could have inferred such
planning from his admitted presence, particularly in light of the
ample additional evidence of his involvement. Holmes also
argues Derrick Tate’s testimony that he bragged about the
shooting was unreliable because, though they were not

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Opinion of the Court by Corrigan, J.

incarcerated at the time, Tate should be treated as an
“inherently suspect” jailhouse informant. Putting aside the
factual mischaracterization of Tate’s status, this court has
“consistently rejected claims that the testimony of jailhouse
informants is inherently unreliable.” (People v. Hoyos (2007) 41
Cal.4th 872, 898.) As we have explained, there must be a “legal
ground for exclusion of otherwise relevant evidence.” (People v.
Hovarter (2008) 44 Cal.4th 983, 996.) 41 Holmes identifies none.
d. Personal Use of Firearm
Holmes contends insufficient evidence supports the jury’s
true finding of personal firearm use. (§ 12022.5, subd. (a).) As to
each count of murder and attempted murder, the jury found that
Holmes “personally used a firearm, to wit, a handgun.” He
argues the only evidence supporting the enhancement should be
discounted as unreliable. Substantial evidence supports the
jury’s conclusions. (See People v. Edwards, supra, 57 Cal.4th at
p. 715.) Derrick Tate testified that Holmes admitted he was a
killer. Holmes told Tate that he and others had “blasted” after
jumping from some bushes. Holmes argues this testimony
should be discounted because Tate was a felon who spoke with
police to gain favor or reward money. In fact, though Tate was
given transportation, lodging, and food while in California to
testify, he received neither reward nor benefit in his felony
prosecution. The reliability of his testimony was properly
subject to jury evaluation.
The jury was likewise free to weigh the testimony of
Gabriel Pina’s girlfriend, Lillian Gonzales. Seconds after shots

41
Holmes and McClain also assert Gabriel Pina’s
identification was “manifestly unreliable.” We have rejected
those claims. (See ante, at pp. 54–59.)

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were fired, Gonzales saw a man wearing a trench coat and
holding a gun run from Wilson Street and get into a nearby car.
Gonzales acknowledged she was nearsighted, with 20/400 vision
in one eye and 20/20 vision in the other but testified that she
was able to see the black gun held by the man from a distance
of about six houses. Pina later identified Holmes as the gunman.
Holmes claims Gonzales’s testimony is unreliable because, in
her prior interviews and grand jury testimony, she failed to
mention that the person she saw running was holding a gun.
Although she had confided this fact to coworkers, she
acknowledged that she did not mention it in earlier questioning.
The evidence on firearm use was sufficient; the credibility
assertions Holmes makes were squarely before the jury.
e. Special Circumstances
McClain and Newborn challenge the special circumstance
findings, arguing they were not major participants in the
Halloween shootings. (See Tison v. Arizona (1987) 481 U.S. 137.)
McClain argues his role was, at most, that of a coconspirator
who was elsewhere when the shootings occurred. Newborn
similarly contends the evidence shows only that he was at
McFee’s house, not the multiple-murder site. Both arguments
fail. Simply because Newborn and others were involved in a
shooting at McFee’s house does not mean they could not have
committed other crimes that night, as McClain and Newborn
seem to urge.
The multiple-murder special circumstance does not
require a finding of intent to kill more than one victim. (People
v. Rogers (2006) 39 Cal.4th 826, 892.) Here, three children
perished, all shot during the same short encounter. Viewed in
the light most favorable to the judgment, the jury reasonably

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could have concluded that McClain and Newborn intended to
kill at least one victim and were responsible for killing others.
(See People v. Maciel (2013) 57 Cal.4th 482, 521.)
The lying-in-wait special circumstance required, at the
time of the crime, that the murder be committed with intent to
kill while lying in wait.42 (People v. Streeter, supra, 54 Cal.4th
at p. 246.) This special circumstance requires concealment of
purpose, a period of watchful waiting, and a surprise attack.
(Ibid.) Those elements were satisfied. The victims were walking
down the street, unaware of hidden assailants. The first
gunshots came from behind bushes where the assailants hid. In
describing the night to Derrick Tate, Holmes said he hid in
bushes, then jumped out and began firing. As Holmes admitted
to Tate, and as others described, the assailants hid behind
bushes before jumping out and firing.
Even if Newborn and McClain were not the shooters,
substantial evidence supports the jury’s true findings on an
aiding and abetting theory under section 190.2 as it existed in
1993. Subdivision (c) of the statute then provided, “Every person
whether or not the actual killer found guilty of intentionally
aiding, abetting, counseling, commanding, inducing, soliciting,
requesting, or assisting any actor in the commission of murder
in the first degree shall suffer death or confinement in state
prison for a term of life without the possibility of parole” in a
case in which a special circumstance has been found true. (§

42
First degree murder perpetrated by means of lying in wait
was distinct from the special circumstance because it required
only wanton and reckless intent to inflict injury likely to cause
death and could be perpetrated by means of, not necessarily
while, lying in wait. (People v. Streeter (2012) 54 Cal.4th 205,
246.)

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190.2, former subd. (b).) Evidence establishing these
requirements was presented against both defendants. Newborn
was seen at McFee’s house with a bulge under his clothing that
appeared to be a weapon. Shortly after he left, shots were fired.
Physical evidence connected the weapon used at McFee’s house
with the weapon used on Wilson Street. Similarly, McClain was
seen driving the lead car and later bragged that he had shot
Crips on Wilson Street. He also held a .38-caliber or nine-
millimeter gun while singing lyrics that implied he had used the
gun to kill someone.
4. Prosecutorial Misconduct
Defendants argue several remarks during the prosecutor’s
closing argument were misconduct. Improper comment by a
prosecutor requires reversal if it so infects a trial with
unfairness as to deny due process or “ ‘if it involves the use of
deceptive or reprehensible methods to persuade.’ ” (People v.
Winbush (2017) 2 Cal.5th 402, 480 (Winbush).) The remarks
complained of here neither deceived the jury nor undermined
due process.
McClain was arrested with Bowen for firearm possession
about a year before the Halloween shootings. The prosecutor
mentioned this arrest in closing argument to suggest that
McClain did not intend to act innocently, or alone, on the night
of the murders. McClain objected, noting the arrest was for gun
possession, not for “shooting at anyone.” The court allowed
argument to proceed, implicitly overruling the objection. No
further mention was made of the arrest. McClain now complains
the prosecutor improperly argued facts not in evidence. Counsel
is not permitted to “assume or state facts not in evidence
[citation] or mischaracterize the evidence [citation]”; however,

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the reasonableness of inferences counsel draws from matters in
evidence “ ‘ “is for the jury to decide.” ’ ” (People v. Valdez, supra,
32 Cal.4th at pp. 133–134.) McClain’s prior arrest with Bowen
was a fact in evidence. The prosecutor could appropriately refer
to it in asking the jury to disbelieve McClain’s claim that he
intended to act alone on the night of the murders. These
“comments did not mischaracterize or assume facts not in
evidence, but merely commented on the evidence and made
permissible inferences.” (Id. at p. 134.)43
McClain next claims the prosecutor committed
misconduct by referring to security guard Horace Carlyle’s
testimony that a group gathered at the hospital after Hodges’s
death appeared to include gang members. Defense counsel did
not object below. (See Dykes, supra, 46 Cal.4th at p. 756; see also
Winbush, supra, 2 Cal.5th at p. 481.) Even if preserved, the
claim would fail. Carlyle testified that he believed a group
gathered outside the hospital might be gang members. Although
the court prevented further questioning on the subject, the
testimony about Carlyle’s belief was not stricken. Accordingly,
the prosecutor’s reference was an appropriate comment on the
evidence (People v. Leon, supra, 61 Cal.4th at pp. 605–606), and
its weight was for the jury to determine.
At one point in his argument, the prosecutor observed that
witnesses had been afraid to testify and noted that defendants

43
McClain also contends the prosecutor misstated the law
by creating a misimpression that his use of a gun in the Price
and Wilson Street shootings would permit the jury to find him
guilty of both crimes. He fails to identify the precise argument
he finds objectionable. In any event, he failed to raise this
objection below. (See Dykes, supra, 46 Cal.4th at p. 756; see also
Winbush, supra, 2 Cal.5th at p. 481.)

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had the ability to retaliate against them. McClain asserts these
comments were improper. The argument was fair comment.
Numerous witnesses testified that they or their families had
been threatened and that they were afraid to testify. The
prosecutor appropriately discussed this evidence and did not
improperly assert that McClain or any codefendant had
threatened witnesses, jurors, or anyone else in the courtroom.
The prosecutor briefly resorted to flowery rhetoric but doing so
was neither deceptive nor reprehensible. (See Winbush, supra,
2 Cal.5th at p. 481.)
McClain next complains three of the prosecutor’s
comments sought to lessen the state’s burden of proof or shift it
to McClain. No objection was raised below, and none of the
remarks constituted misconduct. First, the prosecutor noted
that McClain had said P-9 members were not welcome at King’s
Manor because it was controlled by a rival gang. The prosecutor
simply mentioned this evidence but attached no nefarious
significance to it, as McClain now asserts. Second, the
prosecutor acknowledged that many witnesses, including his
own, belonged to gangs, had been threatened, or had received
some financial incentive to testify. This was fair comment on the
evidence and not, as McClain asserts, an attempt to blame
defendants for the poor quality of their witnesses. Finally, the
prosecutor argued that if any P-9 member had resembled
McClain, McClain would have presented evidence of the fact.
This stray remark, to which McClain did not object, did not
impermissibly shift the burden of proof or rise to the level of
misconduct. It is not misconduct to argue the absence of
evidence reasonably available. (See People v. Bennett (2009) 45
Cal.4th 577, 596; People v. Cornwell (2005) 37 Cal.4th 50, 90.)

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Defendants next argue the prosecutor improperly sought
to rouse sympathy by referring to photographs of the victims,
which had remained on display during arguments, without
objection. The prosecutor noted that the photos showed “dead
children; big children, but dead children.” Defendants failed to
object to the comment (see Dykes, supra, 46 Cal.4th at p. 756;
see also Winbush, supra, 2 Cal.5th at p. 481) and the claim lacks
merit. Advocates have wide latitude to comment on the evidence
and may present vigorous argument to do so. (People v. Leon,
supra, 61 Cal.4th at pp. 605–606.) So long as the prosecutor’s
argument is a fair comment on the evidence, or constitutes a
reasonable inference from it, no misconduct will be found. (Ibid.)
Here, the prosecutor’s reference to the victims’ photographs was
a fair discussion of the evidence. “Crimes of violence . . . are
almost always upsetting. Discussing the manner in which they
are committed is fair comment. There is no requirement that
crimes of violence be described dispassionately or with
philosophic detachment.” (Id. at p. 606.)
The prosecutor urged jurors to view themselves as “the
only thing between [defendants] and their next victims.” After
the court sustained an objection, the prosecutor told jurors they
would be sending a message by their verdict “one way or the
other.” Defendants again objected, and the court admonished
that the jury’s “duty is not to send a message but to determine
the evidence in this case and make a determination in
deliberation.” Defendants now renew their claim that these
statements constituted prejudicial misconduct. “ ‘ “It is, of
course, improper [for the prosecutor] to make arguments to the
jury that give it the impression that ‘emotion may reign over
reason,’ and to present ‘irrelevant information or inflammatory
rhetoric that diverts the jury’s attention from its proper role, or

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invites an irrational, purely subjective response.’ ” ’ ” (People
v. Covarrubias (2016) 1 Cal.5th 838, 894 (Covarrubias).)
However, any allegedly improper statements by the prosecutor
must be considered in light of the entire argument. (Ibid.) “ ‘In
conducting [our] inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (Ibid.)
The prosecutor’s assertion that jurors were the only thing
standing between defendants and their next victims improperly
appealed to jurors’ fear of violence, suggesting they decide the
case based on this emotion rather than a critical and neutral
evaluation of the evidence. But the impropriety does not violate
due process when, as here, an objection was sustained and
followed by a curative instruction. (Greer v. Miller (1987) 483
U.S. 756, 765–766.) For the same reason, the claim fails under
state law. (Winbush, supra, 2 Cal.5th at p. 480.) Defendants
object that the court’s admonition was not sufficiently curative
because, after noting that defendants had a right to a fair trial,
the court added, “[B]ut also the reason they have a right to a fair
trial is because we have three dead people. He has a right to
comment on it.” However, defendants ignore the court’s
unequivocal condemnation of the prosecutor’s statement as “a
patent appeal to passion and prejudice. It is improper; it is
misconduct.” In light of this clear and contemporaneous rebuke,
the prosecutor’s statement would not have so inflamed the jury’s
passions or infected the trial with unfairness that due process
was denied. (See ibid.) Indeed, the prosecutor may have
undermined his own credibility by employing a strategy firmly
condemned by the court.
In a related point, McClain and Holmes contend it was
misconduct for the prosecutor to urge the jury to solve the social

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problems of gangs and violence by returning convictions. Again,
no objection was interposed. (See Dykes, supra, 46 Cal.4th at
p. 756; see also Winbush, supra, 2 Cal.5th at p. 481.) Had it been
properly preserved, the prosecutor’s comments were
tantamount to comparing the jury to “ ‘the conscience of the
community,’ ” a practice we have routinely upheld as proper.
(People v. Gamache (2010) 48 Cal.4th 347, 388–389.)
Finally, defendants argue it was misconduct for the
prosecutor to request convictions so that the victims could rest
in peace. Again they did not object (see Dykes, supra, 46 Cal.4th
at p. 756; see also Winbush, supra, 2 Cal.5th at p. 481), and the
assertion fails on the merits as well. Viewed in context of the
closing argument as a whole, the statement did not constitute
inflammatory rhetoric designed to provoke a thoughtless
emotional response. (Covarrubias, supra, 1 Cal.5th at p. 894.) It
was fair comment on the crimes committed and the jury’s role in
dispensing justice.
5. Instruction Issues
a. Consciousness of Guilt (CALJIC No. 2.03)
Holmes argues the consciousness of guilt instruction,
CALJIC No. 2.03,44 was improperly argumentative, constituted
an improper pinpoint instruction, and lessened the prosecution’s
burden of proof. He acknowledges we have consistently rejected

44
As given, CALJIC No. 2.03 provides: “If you find that
before this trial defendant made a willfully false or deliberately
misleading statement concerning the crime for which is now
being tried, you may consider such statement as a circumstance
tending to prove a consciousness of guilt. However, that conduct
is not sufficient by itself to prove guilt, and its weight and
significance, if any, are matters for your determination.”

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similar claims (see, e.g., Covarrubias, supra, 1 Cal.5th at p. 922;
People v. Holloway (2004) 33 Cal.4th 96, 142), and offers no
reason to reconsider these holdings.
b. Suppression of Evidence (CALJIC No. 2.06)
Evidence was presented that McClain cut his hair and
Newborn disposed of a weapon shortly after the Halloween
shootings. Accordingly, the court gave CALJIC No. 2.06,
concerning defense suppression of evidence. 45 Holmes and
McClain argue the instruction was unnecessary, argumentative,
and permitted the jury to draw irrational inferences.
We review of an instructional error claim by evaluating
whether the jury could have applied the challenged instruction
in an impermissible manner. (People v. Smithey (1999) 20
Cal.4th 936, 963.) “ ‘ “[T]he correctness of jury instructions is to
be determined from the entire charge of the court, not . . . from
a particular instruction.” ’ ” (People v. Musselwhite (1998) 17
Cal.4th 1216, 1248.)
There was no error. The instruction invites the jury to
consider the significance of a defendant’s alteration of physical
appearance and destruction of evidence. (See People v. Adams
(2014) 60 Cal.4th 541, 571.) It was not improperly

45
As given, CALJIC No. 2.06 provided: “If you find that a
defendant attempted to suppress evidence against himself
herself [sic] in any manner, such as by the intimidation of a
witness, by an offer to compensate a witness, by destroying
evidence[,] by concealing evidence, by cutting hair, such attempt
may be considered by you as a circumstance tending to show a
consciousness of guilt. However, such conduct is not sufficient
by itself to prove guilt, and its weight and significance, if any,
are matters for your consideration.”

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argumentative, nor did it permit the jury to draw irrational
inferences. (People v. Stitely (2005) 35 Cal.4th 514, 555.)
c. Other Crimes (CALJIC Nos. 2.50, 2.50.2,
2.50.2)
Over McClain’s objection, the jury was given CALJIC Nos.
2.50,46 2.50.1,47 and 2.50.248 regarding other crimes evidence as

46
As given, CALJIC No. 2.50 provided: “Evidence has been
introduced for the purpose of showing that a defendant
committed a crime other than that for which he is on trial. [¶]
Such evidence, if believed, was not received and may not be
considered by you to prove the defendant is a person of bad
character or that he has a disposition to commit crimes. [¶] Such
evidence was received and may be considered by you only for the
limited purpose of determining if it tends to show: The
defendant had knowledge or possessed the means that might
have been useful or necessary for the commission of the crime
charged, [¶] The existence of a conspiracy. [¶] For the limited
purpose for which you may consider such evidence, you must
weigh it in the same manner as you do all other evidence in this
case. [¶] You are not permitted to consider such evidence for any
other purpose.”
47
As given, CALJIC No. 2.50.1 provided: “Within the
meaning of the preceding instruction, the other crime
purportedly committed by the defendant must be proved by a
preponderance of the evidence. You must not consider such
evidence for any purpose until you are satisfied that a particular
defendant committed the other crime. [¶] The prosecution has
the burden of proving these facts by a preponderance of the
evidence.”
48
As given, CALJIC No. 2.50.2 provided: “ ‘Preponderance of
the evidence’ means evidence that has more convincing force
and the greater probability of truth than that opposed to it. If
the evidence is so evenly balanced that you are unable to find []
the evidence on either side of an issue preponderates, your
finding on that issue must be against the party who had the
burden of proving it. [¶] You should consider all of the evidence
bearing upon every issue regardless of who produced it.”

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proof of conspiracy. McClain renews his arguments here, but
they lack merit.
McClain first argues the instructions lessened the
prosecution’s burden of proof. We rejected a similar claim in
O’Malley, supra, 62 Cal.4th 944. Challenging the same three
instructions, O’Malley argued the jury could have misconstrued
the instructions to permit conviction of conspiracy to commit
murder of one victim simply by finding by a preponderance of
the evidence that he had assaulted and robbed someone else. (Id.
at p. 991.) We concluded there was no suggestion the jury was
confused about what other crimes it could consider, or how those
other crimes were to be analyzed in relation to the charged
offenses. (Ibid.) The same is true here. An instructional error
claim is reviewed in the context of the record and instructions
as a whole to determine whether there is “ ‘ “a reasonable
likelihood that the jury was misled to defendant’s prejudice.” ’ ”
(Ibid.) We assume that jurors are intelligent and well able to
understand and integrate all the instructions given. (Ibid.) The
instructions made clear that the uncharged acts could only be
considered in connection with the conspiracy charge. CALJIC
No. 2.50.1 informed the jury that the evidence could not be
considered unless it had been proven by a preponderance of the
evidence. There is no reasonable likelihood jurors were misled.
McClain next argues the instructions failed to harmonize
the different burdens of proof, permitting conviction of
conspiracy on a constitutionally deficient standard. That is not
so. Taken together, the instructions explain that the other
crimes cannot be considered at all unless they were proven by a

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preponderance of the evidence. If the jury concluded that
threshold showing was met, it could then determine whether
those crimes, along with any other evidence, established beyond
a reasonable doubt that McClain committed conspiracy. The
instructions are accurate and were properly given. (See
O’Malley, supra, 62 Cal.4th at p. 991; People v. Sattiewhite
(2014) 59 Cal.4th 446, 475.)
McClain contends the other crimes instruction was
erroneous because it could have been used to determine his guilt
for the charged crimes. The instruction’s language reveals the
flaw in this argument. CALJIC No. 2.50 states that other crimes
evidence “may be considered by you [only] for the limited
purpose of determining if it tends to show: [¶] . . . [¶] [The
defendant had knowledge or possessed the means that might
have been useful or necessary for the commission of the crime
charged;]” the existence of a conspiracy. (Italics added.)
Finally, McClain claims the instructions allowed the jury
to find him guilty of conspiracy if they believed him to be of bad
character. CALJIC No. 2.50 specifically instructed otherwise:
“evidence, if believed, may not be considered by you to prove that
defendant is a person of bad character or that [he] has a
disposition to commit crimes.” The jury was also instructed that
the crime of conspiracy requires proof of an agreement and an
overt act in furtherance of that agreement. (CALJIC No. 6.10.)
There is no reason to believe jurors were unable to apply these
instructions. (People v. Sattiewhite, supra, 59 Cal.4th at p. 475.)
McClain’s argument that the jury was confused because it was
unsure which of his “other crimes” it could consider is similarly
unavailing. (See O’Malley, supra, 62 Cal.4th at p. 991.) The jury

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was given CALJIC No. 2.23,49 which explained that the felony
convictions were relevant to the separate issue of credibility.
d. Motive (CALJIC No. 2.51)
The jury received CALJIC No. 2.51: “Motive is not an
element of the crime charged and need not be shown. However,
you may consider motive or lack of motive as a circumstance in
this case. Presence of motive may tend to establish guilt.
Absence of motive may tend to establish innocence. You will
therefore give its presence or absence, as the case may be, the
weight to which you find it to be entitled.” McClain argues this
instruction improperly shifted the burden of proof to him,
lessened the prosecution’s burden, and impermissibly allowed
the jury to determine guilt based upon motive. We have
previously rejected similar claims and do so again.
People v. Prieto (2003) 30 Cal.4th 226, 254, explained that
CALJIC No. 2.51 does not concern a standard of proof, but
rather addresses motive. Because there was no reason a jury
could or would confuse a motive instruction with a reasonable
doubt instruction, we concluded CALJIC No. 2.51 does not
violate the defendant’s right to due process. (Prieto, at p. 254.)
McClain argues the jury should have been cautioned that motive
alone is insufficient to establish guilt. People v. Snow (2003) 30
Cal.4th 43, 97–98, rejected this contention, explaining: “If the
challenged instruction somehow suggested that motive alone

49
As given, CALJIC No. 2.23 provided, “The fact that a
witness has been convicted of a felony, if such be a fact, may be
considered by you only for the purpose of determining the
believability of that witness. The fact of such a conviction does
not necessarily destroy or impair a witness’ believability. It is
one of the circumstances that you may take into consideration
in weighing the testimony of such a witness.”

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was sufficient to establish guilt, defendant’s point might have
merit. But in fact the instruction tells the jury that motive is not
an element of the crime charged (murder) and need not be
shown, which leaves little conceptual room for the idea that
motive could establish all the elements of murder.” (Ibid.) The
trial court did not err by giving CALJIC No. 2.51.
e. Burden of Proof (CALJIC Nos. 1.00, 2.01, 2.51,
2.52)
Holmes argues the court violated his rights to due process
and a fair trial by instructing the jury with CALJIC Nos. 1.00,50
2.01,51 2.51, and 2.5252 because those instructions
impermissibly discussed guilt and innocence. Holmes contends
these instructions violated his state and federal constitutional

50
CALJIC No. 1.00, titled “Respective Duties of Judge and
Jury,” provided in pertinent part, “You must not be biased
against the defendant because he has been arrested for this
offense, charged with a crime, or brought to trial. None of these
circumstances is evidence of guilt and you must not infer or
assume from any or all of them that he is more likely to be guilty
than innocent.”
51
CALJIC No. 2.01, titled “Sufficiency of Circumstantial
Evidence — Generally,” provided in pertinent part, “Also, if the
circumstantial evidence as to any particular count is susceptible
of two reasonable interpretations, one of which points to the
defendant’s guilt and the other to his innocence, you must adopt
that interpretation which points to the defendant’s innocence,
and reject that interpretation which points to his guilt.”
52
CALJIC No. 2.52, entitled “Flight After Crime,” provided,
“The flight of a person immediately after the commission of a
crime, or after he is accused of a crime, is not sufficient in itself
to establish his guilt, but is a fact which, if proved, may be
considered by you in light of all other proved facts in deciding
the question of his guilt or innocence. The weight to which such
circumstance is entitled is a matter for the jury to determine.”

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rights because they suggested the jury’s decision was between
guilt and innocence rather than whether there was a reasonable
doubt as to his guilt. As Holmes acknowledges, we have rejected
similar arguments. (See, e.g., People v. Streeter, supra,
54 Cal.4th at p. 253; People v. Kelly (2007) 42 Cal.4th 763, 792.)
Likewise, here. “Each of these instructions ‘ “is unobjectionable
when, as here, it is accompanied by the usual instructions on
reasonable doubt, the presumption of innocence, and the
People’s burden of proof.” ’ ” (Streeter, at p. 253.)
f. Special Circumstance Instruction
Newborn and McClain argue the jury was erroneously
instructed with the 1993 version of CALJIC No. 8.80.1,53 which

53
“If you find the a [sic] defendant in this case guilty of
murder of the first degree, you must then determine if one or
more of the following special circumstances: is true or not true:
that a defendant committed one or more murders in addition to
first degree murder and a murder was committed while lying in
wait. [¶] The People have the burden of proving the truth of a
special circumstance. If you have a reasonable doubt as to
whether a special circumstance is true, you must find it to be
not true. [¶] If you find that a defendant was not the actual killer
of a human being, or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor or co-
conspirator, you cannot find the special circumstance to be true
as to that defendant unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted any actor in the commission of the murder
in the first degree. [¶] You must decide separately as to each of
the defendants the existence or nonexistence of each special
circumstance alleged in this case. If you cannot agree as to all
the defendants, but can agree as to one or more of them, you
make your findings as to the one or more upon which you do
agree. [¶] You must decide separately each special circumstance
alleged in this case as to each of the defendants. If you cannot

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did not inform jurors of the constitutional requirement that each
defendant be “a major participant” in the homicidal conduct
alleged and that each defendant harbor either an intent to kill
or a mental state of reckless indifference to human life. (See
Tison v. Arizona, supra, 481 U.S. 137.) They assert Tison
established the level of personal involvement required for an
aider and abettor to be eligible for the death penalty. They
misread the decision. Tison instead addressed “the
proportionality of the death penalty in . . . midrange felony-
murder cases.” (Id. at p. 155.) Those issues are not involved here.
Defendants’ challenge to CALJIC No. 8.80.1 is unfounded. (See
Tapia v. Superior Court (1991) 53 Cal.3d 282, 298, fn. 16.)54
B. Penalty Phase55
1. Pretrial Issues
a. Issues related to McClain’s Counsel
McClain argues he was denied his right to counsel during
the penalty retrial by various rulings. No error occurred.

agree as to all of the special circumstances, but you can agree as
to one or more of them, you must make your findings as to the
one or more upon which you do agree. [¶] In order to find a
special circumstance alleged in this case to be true or untrue,
you must agree unanimously. [¶] You will state your special
finding as to whether this special circumstance is or is not true
on the form that will be supplied.” (CALJIC No. 8.80.1.)
54
The language defendants argue should have been included
was later added to CALJIC No. 8.80.1 in felony-murder cases.
We recently held this language is flawed because it permits “the
jury to find the multiple-murder special circumstance true
without finding defendant intended to kill a human being.”
(Covarrubias, supra, 1 Cal.5th at p. 929.)
55
Holmes contends guilt phase errors individually and
collectively rendered the trial unfair and had the additional

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Opinion of the Court by Corrigan, J.

i. Background
On March 15, 1996, a little over a month after the first
jury deadlocked, the prosecution announced its intent to retry
the penalty phase. A week later, Newborn and McClain
requested a continuance, arguing they needed additional
investigation and time to prepare for a retrial of “the entire
case.” The request was denied. The court found no good cause
for the delay because counsel “could anticipate this was going to
go to trial again.”
The next day, McClain’s attorney Elizabeth Harris moved
to continue the penalty retrial for 60 days due to persistent
health issues. The court relieved Harris, and appointed Richard
Leonard, an experienced death penalty advocate, as
replacement counsel. The other alternative was for McClain to
represent himself, but the court advised against that. The court
adjourned to contact Leonard regarding the appointment.
When the parties returned to court, McClain said he had
met with Leonard but preferred to represent himself. The court
told McClain to make that request in writing within 10 days,
taking into account that it was a death penalty case and
addressing “some of the behavior that we have had.” It
cautioned that McClain would be “fighting for [his] very life”
handling a death penalty case, which very few lawyers are

effect of poisoning his penalty phase defense. No such prejudice
could have attached because the jury that convicted these
defendants failed to agree on a penalty verdict. The penalty
phase was ultimately retried before a new jury, which returned
a verdict of death. To the extent any errors occurred during the
guilt phase, none could have affected the penalty determination
reached by a different jury that heard newly presented evidence
and received its own instructions.

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equipped to do. Leonard could remain involved as standby
counsel, however, if McClain proceeded in propria persona.
A few days later, McClain filed a “Motion to Represent Self
in Pro Per or to Appoint New Counsel,” citing both Faretta v.
California (1975) 422 U.S. 806, 807 (Faretta) and People v.
Marsden (1970) 2 Cal.3d 118. The prosecutor argued McClain
should be permitted to represent himself, with standby counsel
and with a continuance to allow standby counsel time to
prepare. Tackling McClain’s Faretta motion first, the court
probed whether McClain had engaged in any acts of violence
against law enforcement that might affect his self-
representation decision. Because McClain had been in an
altercation with a fellow inmate, the court requested additional
briefing on what safety measures would be appropriate if he
were to proceed in propria persona.
The matter was continued to April 9, 1996. That same day,
McClain filed a “Petition to Proceed in Propria Persona,” listing
numerous advisements and admonitions about the right of self-
representation. The court reviewed these admonitions with
McClain. It also clarified the specific security measures that
would be employed, explaining that McClain would not be able
to leave the confines of a small area while conducting his
defense. The court stated: “I will allow you to stand. You will be
wearing a belt, and that is because of the past activities. [¶] . . .
I will make it so you look presentable, but you will not go past a
certain area. Understand? [¶] There will be a podium. You can
use that.” McClain indicated his assent. The court also informed
McClain that if it allowed him to proceed in propria persona, “we
will have Mr. Leonard, who has been appointed by the
supervising judge, as standby counsel.” Leonard added that
McClain preferred he serve in the role of advisory counsel

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instead, and McClain confirmed that was his wish. The court
accepted McClain’s waivers and granted his propria persona
request. McClain indicated readiness to proceed to trial a week
later, but the court granted a continuance until June 28, 1996,
a period of over 10 weeks. The case was then continued once
more, to August 12, 1996. As a result, Newborn received
additional preparation time, as he had requested on March 15.
ii. Discussion
McClain first contends the court arbitrarily and
unreasonably denied attorney Harris’s request for a
continuance, ultimately depriving him of the right to effective
assistance of counsel. The court relieved attorney Harris due to
her medical condition. McClain argues Harris requested only a
60-day continuance to recuperate. He asserts the denial of this
request resulted in his loss of counsel and a much longer trial
delay. The record does not bear out McClain’s assertions.
When Harris appeared in court after the first continuance
request was denied, she told the court in stark terms that her
health prevented her from continuing to represent McClain:
“Your honor, the court has mentioned my health; and I am very
serious when I say this: I can’t try this case, judge. I literally
cannot do it.” Initially, the court responded, “I don’t feel like I
want to do it either,” and “we are just going to have to do it.”
However, the next day Harris filed a formal motion to continue
the case for 60 days due to her ongoing health problems. In fact,
Harris’s illness prevented her from appearing at the hearing on
this motion. The court noted its awareness of Harris’s health
issues and commented, “The new rules of court are that we do
not grant any continuance on a [section] 1050 without good
cause. [¶] . . . [¶] So the question is do we relieve Miss Harris.”

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Having reviewed declarations from Harris and her doctors, the
court appeared persuaded that Harris might need considerably
more than 60 days to recover sufficiently and proceed to trial.
To that end, the court asked the attorney standing in for Harris
to recommend substitute counsel, and Leonard was suggested.
People v. Mungia (2008) 44 Cal.4th 1101, 1119, held it was
not an abuse of discretion for a court to replace counsel, rather
than grant a requested continuance so that an attorney could
recover from a heart attack. We reasoned that there was no
guarantee the attorney would have actually recuperated by the
date projected. (Ibid.) Similarly here, although Harris requested
a 60-day continuance, her moving papers did not indicate that
that her health condition would necessarily be resolved by then.
Trial courts enjoy broad discretion with regard to continuances,
and “only an unreasoning and arbitrary ‘insistence upon
expeditiousness in the face of a justifiable request for delay’
violates the right to the assistance of counsel.” (Morris v. Slappy
(1983) 461 U.S. 1, 11−12.) The request here was further
complicated by the fact that the trial involved two other
codefendants whose rights were also implicated. As in Mungia,
“the court did not abuse its discretion by declining to wait for
more information.” (Mungia, at p. 1119)
McClain next contends the trial court denied his Marsden
motion without a hearing in violating his rights to a fair trial
and the effective assistance of counsel. He asserts the court was
obliged to permit him to “put on the record instances of [his
asserted] misconduct” and its failure to do so was an abuse of
discretion. Not so. McClain sought substitution of counsel only
if the court denied his Faretta motion. He asked for “an order
. . . to act as his own counsel, . . . or in the alternative to appoint
new counsel.” (Italics added.) The court determined this motion

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was in reality a Faretta motion, not a Marsden motion, a hearing
on which would have required the prosecutor’s exclusion.
Because the court granted McClain’s Faretta motion, it had no
occasion to consider the alternative request for substitution of
counsel. At no time did McClain object to attorney Leonard’s
participation as advisory counsel. McClain cannot be heard to
now complain that the court granted his request as he framed
it. The court did not violate his constitutional rights by failing
to address an alternative motion that had become moot.

Finally, McClain argues his waiver of the right to counsel
was not knowing, voluntary, or intelligent. Of course, criminal
defendants have a constitutional right to the assistance of
counsel during all critical stages of the proceedings. (See
Faretta, supra, 422 U.S. at p. 807; United States v. Wade (1967)
388 U.S. 218, 223–227.) This right may be waived, however. “An
effective waiver requires that the defendant possess the mental
capacity to comprehend the nature and object of the proceedings
against him or her, and waive the right knowingly and
voluntarily. [Citations.] There is no prescribed script or
admonition that trial courts must use to warn a defendant of the
perils of self-representation. But the record as a whole must
establish that the defendant understood the ‘dangers and
disadvantages’ of waiving the right to counsel, including the
risks and intricacies of the case. [Citations.] If a defendant
validly waives the right to counsel, a trial court must grant the
request for self-representation.” (People v. Daniels (2017) 3
Cal.5th 961, 977–978, italics added (Daniels).) “Where a trial
court has granted a defendant’s request for self-representation,
the question on appeal is ‘whether the defendant knowingly and
intelligently waived the right to counsel.’ ” (People v. Burgener

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(2016) 1 Cal.5th 461, 471 (Burgener).) “We review a Faretta
waiver de novo, examining the entire record to determine the
validity of a defendant’s waiver.” (Daniels, at p. 978.)
McClain first asserts that the trial court failed to “fully
and accurately inform him of his legal options with regard to
counsel” because it suggested his only options were self-
representation or representation by attorney Leonard. He
claims the court simply elicited responses to boilerplate
questions and did not conduct the probing inquiry required by
Faretta. (See Moran v. Godinez (9th Cir. 1994) 57 F.3d 690, 705.)
The record reflects otherwise.
The court carefully and thoroughly advised McClain of his
constitutional rights and the consequences of waiving them.
McClain expressly confirmed, both orally and in writing, “I
understand that I have the right to be represented by a lawyer
at all stages of the proceedings and, if I do not have funds to
employ counsel, one will be appointed for me by the court.” To
this end, McClain successfully asked the court to appoint
Leonard to serve as his “advisory counsel.” McClain affirmed
that he understood his constitutional rights, that he wished to
act as his own lawyer, and that he would be “giving up the right
to be represented by a lawyer appointed by the court.” Asked if
he understood that he would “have to conduct [his] own defense
by [him]self and without the aid of a lawyer,” McClain said he
did and was “willing to do that.” The court also warned that he
might not be allowed to change his mind and have a lawyer
appointed, depending on the stage of the proceedings. McClain
assured the court he understood. These warnings, and many
others, were also contained in McClain’s own “Petition to
Proceed in Propria Persona” executed on April 9, 1996. There is
no basis to McClain’s assertion that he was not fully or

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accurately informed of his legal options. Indeed, he identifies no
specific fact that was kept from him, or about which he was
ignorant. The trial court read from his own petition to ensure
McClain understood what he had signed, and it probed beyond
the form to assess McClain’s willingness and ability to serve as
his own counsel. (Burgener, supra, 1 Cal.5th at p. 465.) The
record reflects the waiver was freely given.
McClain next contends the court failed to apprise him,
either in the petition or orally, of his Eighth and Fourteenth
Amendment rights to have the penalty jury consider his
character, record, and the circumstances of his offense.
However, a waiver of the right to counsel is valid so long as the
defendant understands “the nature and object of the proceedings
against him or her” and relinquishes “the right knowingly and
voluntarily.” (Daniels, supra, 3 Cal.5th at p. 977.) No magic
words are required, so long as the record demonstrates the
defendant was aware of “the ‘dangers and disadvantages’ of
waiving the right to counsel, including the risks and intricacies
of the case.” (Id. at p. 978.) The court need not inform a
defendant of attendant rights a valid waiver also relinquishes.
Nor does the failure to advise about specific constitutional
provisions defeat an otherwise valid waiver. (Ibid.) This record
demonstrates McClain was sufficiently advised. The court
warned McClain on numerous occasions of the dangers
associated with self-representation, particularly in a capital
case. Nevertheless, it was satisfied that he understood the risks
of doing so. McClain’s complaint that he was not fully aware of
arguments that could be made to a penalty-phase jury does not
render his waiver invalid. When a defendant knowingly and
intelligently waives the right to counsel he assumes the role of
attorney in full. The court is not obligated to coach him how to

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conduct the defense he has taken upon himself. We note also
that McClain had participated in the initial penalty phase trial,
at which all defendants presented a case in mitigation. Thus,
the arena into which he chose to enter was not completely terra
incognita.
Finally, McClain contends his lack of education, the
complexity of a multi-defendant capital case, and the highly
specialized nature of penalty-phase litigation combined to
render his Faretta waiver invalid. In determining whether to
permit a Faretta waiver, we have suggested “the court provide
advisements falling into three general categories: (1) ensuring
the defendant’s awareness of the ‘ “dangers and disadvantages” ’
[citation] associated with self-representation; (2) inquiring into
the defendant’s intellectual capacity; and (3) informing the
defendant that he or she cannot later claim inadequacy of
representation.” (Daniels, supra, 3 Cal.5th at p. 978; see People
v. Lopez (1977) 71 Cal.App.3d 568, 572–574.)
McClain now argues his failure to graduate from high
school and his work as a brick layer and store clerk “hardly
prepared him to defend himself in a capital penalty phase.” But
the court warned him of the difficulty of presenting such a
defense, sharing its opinion that “very few lawyers” were
qualified to handle death penalty cases. The court also expressly
inquired into McClain’s educational background, previous
employment, and experience with self-representation. The court
explained that McClain would be expected to follow all the
technical and substantive rules of criminal procedure and
evidence and was required to uphold the dignity and standards
of the court. It further explained that McClain would be
expected to select a jury, make preliminary motions, give an
opening statement and closing argument, and cross-examine

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witnesses. McClain indicated he understood and was prepared
to undertake these tasks. After again asking whether McClain
was certain he wanted to represent himself, the court was
satisfied with his representations and granted him propria
persona status.
As in Daniels, “[t]he record as a whole supports the court’s
conclusion” that McClain was competent to waive his right to
counsel. (Daniels, supra, 3 Cal.5th at p. 980.) Despite the court’s
strong warnings that McClain was fighting for his life and
should do so with the assistance of a competently trained
lawyer, McClain repeatedly made clear he wished to represent
himself. McClain’s waiver “reflects his personal preference to
control his own defense — which, no matter how ill advised, he
was entitled to do under Faretta.” (Ibid.)
We also note that, in ruling on a Faretta motion the court
confronts a particularly delicate determination. A defendant has
a right to counsel and a right to represent himself. These critical
rights stand side by side, but do not intersect. If a defendant
knowingly and voluntarily waives the first, the court must grant
an otherwise valid request to exercise the second, unless the
defendant is unable to competently pursue it.
b. Joinder
Holmes and Newborn frequently sought to sever their
trials during the penalty phase, generally due to McClain’s
conduct. The court denied each request. Defendants now
contend the rulings deprived them of due process and a reliable
penalty determination. We conclude to the contrary.
i. Background
During a pretrial hearing, Newborn and Holmes sought
severance based on McClain’s “obscenities and profanities”

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during the guilt phase trial. The court denied the motion, noting
that Newborn himself had engaged in similar behavior the week
before.56 The court explained, “They are all together. They told
the court this and the jury, they’re P-9’s they’re damn proud of
it. [¶] They won’t be severed. I don’t find any rationale for that
argument at all.” A little over a week later, Holmes moved to
sever his penalty trial from Newborn’s and McClain’s. The
motion was denied. Representing himself, McClain’s opening
statement was laden with profanity and he was admonished
several times for his argumentative style. He also admitted his
gang membership. McClain’s codefendants did not renew their
motions for severance at that point.
Newborn sought severance again after McClain
threatened witness Joseph Petelle. Petelle told the court that,
when he left the stand and walked past counsel table, McClain
had whispered, “I’ll kill you.” McClain’s advisory counsel
disputed this account, explaining that he understood McClain to
say, “You’re a dick head.” The court allowed the prosecution to
present evidence of the threat under section 190.3, factor (b).
The court denied Newborn’s severance motion but gave a
limiting instruction that the statement to Petelle was offered
against McClain only.
Newborn and Holmes sought severance again near the end
of the trial when McClain threatened a deputy. (See post, at
pp. 118–121.) The motion was denied. Newborn sought

56
When the prosecutor announced an intent to retry the
penalty phase, Newborn turned to him and said, “Fuck you.” He
then added, “Fuck you. Suck my dick.” The court added, “For the
record” that Newborn “was facing the court when he said, ‘Fuck
you,’ and was also giving a P-9 sign.”

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severance a final time when he unsuccessfully moved for a
mistrial before closing argument.
ii. Discussion
The law governing severance is settled. As noted earlier
(ante, at pp. 19, 20) joint trials are preferred. (See § 1098; People
v. Sánchez, supra, 63 Cal.4th at pp. 463–464 (Sánchez); Bryant,
Smith and Wheeler, supra, 60 Cal.4th at p. 378.) They “promote
efficiency and help avoid inconsistent verdicts.” (Sánchez, at
p. 464; see Zafiro, supra, 506 U.S. at p. 537.) Further,
“ ‘[i]mportant concerns of public policy are served if a single jury
is given a full and fair overview of the defendants’ joint conduct
and the assertions they make to defend against [the] ensuing
charges.’ ” (Sánchez, at p. 464.) Review is for abuse of discretion
based on the facts before the trial court at the time it ruled.
(Ibid.) If the denial of severance was proper at the time, we may
reverse only upon a showing “that the joint trial caused gross
unfairness that denied due process.” (Ibid.)
Generally, severance may be appropriate “if there is an
incriminating confession, prejudicial association, likely
confusion due to evidence on multiple counts, conflicting
defenses, or the possibility that a codefendant might provide
exonerating testimony at a separate trial.” (Sánchez, supra, 63
Cal.4th at p. 464.) Some of these factors have less force here
because defendants had already been found guilty. Newborn
and Holmes argue they were prejudiced by association with
McClain, whose repeated outbursts and use of profanity may
have influenced the jury to impose the death penalty on all of
them. Holmes asserts the court recognized this disadvantage
when it warned McClain his presentation style could negatively
impact his codefendants. “Prejudicial association might exist if

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‘the characteristics or culpability of one or more defendants [is]
such that the jury will find the remaining defendants guilty
simply because of their association with a reprehensible person,
rather than assessing each defendant’s individual guilt of the
crimes at issue.’ ” (Ibid.) Although prejudicial association may
justify severance in some circumstances, that is not the case
here.
We rejected a similar claim of prejudicial association
based on a codefendant’s self-representation in Bryant, Smith
and Wheeler. There, we explained, “no authority holds that
severance is required simply because self-represented and
attorney-represented codefendants have been joined for trial. To
the contrary, many courts have held there is no per se bar
against joint trials in these circumstances. (See, e.g., U.S. v.
Celestin (1st Cir. 2010) 612 F.3d 14, 21; U.S. v. Veteto (11th Cir.
1983) 701 F.2d 136, 139.) . . . It is always possible that a
codefendant or, for that matter, another attorney might engage
in inappropriate behavior. Protection against that possibility is
found not in severance, but in the court’s duty to control the
proceedings and ensure each defendant receives a fair and
reliable trial. A court, of course, may take appropriate measures
to prevent and sanction misconduct. (See, e.g., Veteto, at pp.
138–139 [suggesting various precautionary steps].) Severance is
not required simply as a preemptive measure based on an
assumption that the court will be unable to control the
proceedings.” (Bryant, Smith and Wheeler, supra, 60 Cal.4th at
p. 385.)
The trial court here took repeated and appropriate steps
to manage the courtroom. Although McClain’s presentation was
confrontational and replete with profanity, the court frequently
admonished him and instructed the jury. The court made clear

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that McClain did not speak for the other defendants and that
what he said while questioning or during outbursts was not
evidence against them.
Newborn and Holmes also argue severance was warranted
because the evidence they presented in aggravation and
mitigation differed from McClain’s. They rely on a
distinguishable Massachusetts federal district court decision
permitting but not requiring penalty phase severance where
mitigation evidence for one defendant constituted aggravating
evidence for another. (See U.S. v. Green (D.Mass. 2004) 324
F.Supp.2d 311.) This situation was different. McClain’s
statements about wanting to avenge Hodges’s death did not
undermine the other defendants’ presentations. Holmes
presented lingering doubt evidence, and both he and Newborn
introduced considerable evidence of their backgrounds. The
mitigation and aggravation evidence differed, as it will for all
jointly tried codefendants, but that fact alone did not require
severance.
We likewise found joinder proper in Sánchez, supra, 63
Cal.4th at page 465, despite an argument that the defendant
was prejudiced by his codefendants’ presentation of stronger
mitigation cases than his own. We observed, “ ‘[I]t is not
surprising that different defendants presented different
mitigating evidence regarding their backgrounds. That
circumstance alone clearly cannot establish that the jury failed
to give each defendant individualized consideration.’ ” (Ibid.) So
too here. Each defendant presented their own mitigation
evidence. As in Sanchez, nothing in this record suggests that
“the jury failed to give individualized consideration to [each]
defendant’s proper sentence.” (Ibid.)

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c. Restraints
All three defendants contend the court improperly
required them to wear stun belts during the penalty phase
retrial. They also complain it was error to admit testimony
disclosing that restraints were in use. Although the question is
close, we reject defendants’ claims.
i. Imposition of Restraints
Based on hostile conduct defendants exhibited during the
guilt trial, bailiffs suggested they wear restraints in the penalty
phase. After Mario Stevens testified, McClain had said, “You are
a lying ass piece of shit, man. You are lying through your teeth,
man.” After witness Joseph Petelle testified during the penalty
retrial and was leaving the courtroom, McClain said, “I’ll kill
you.” McClain also made a lewd gesture when the guilty verdicts
were read, displaying his middle finger. Holmes reacted to the
verdicts with hostility, telling the jury, “Fuck you, you
motherfuckers. P-9 rules.” In addressing the severance motion,
Newborn’s counsel observed Holmes commented on the jurors’
intelligence; maligned their values, and heritage; and suggested
they were sexually perverse. In 1995, while incarcerated,
McClain tried to attack another inmate. Afterward, McClain
was found with a jail-made stabbing implement.
At the first penalty trial, the court ordered defendants to
wear stun belts after the bailiffs requested they do so “based on
some activity.” Defendants were given documents explaining
what the belts were and how they could be used. The court
cautioned that the belts were “capable of delivering an impulse
of 50,000 volts” when activated, and activation could occur if
defendants “attempt[ed] to escape,” made “sudden or hostile
movements,” tampered with the stun belt, or failed “to comply

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with verbal commands.” Defendants all acknowledged their
understanding of these terms, though McClain objected. We
need not and do not decide the propriety of the court’s imposition
of restraints at the first penalty trial.
Defendants wore the belts without incident during that
phase. After the prosecutor stated there would be a retrial,
Newborn turned to him and said, “Fuck you.” When the
prosecutor asked that the record reflect the statement, Newborn
responded, “Fuck you. Suck my dick.” The court then noted, “We
will have to probably have to use the restraints again,” adding
“[f]or the record” that Newborn “was facing the court when he
said, ‘Fuck you,’ and was also giving a P-9 sign.” In declining to
sever McClain’s penalty retrial from his co-defendants’, the
court noted they all “told the court . . . and the jury, they’re P-
9s, they’re damn proud of it. . . . I am not happy with their
attitude. They are not going to run this court.” Finding manifest
need for restraints at the penalty retrial “based on [defendants’]
conduct,” and “act[ing] up in th[e] courtroom,” the court ordered
defendants wear stun belts, noting the decision was entirely the
court’s, not that of the bailiffs’. No defendant objected to this
decision.
Trial courts have “ ‘ “broad power to maintain courtroom
security and orderly proceedings.” ’ ” (Covarrubias, supra, 1
Cal.5th at p. 870.) However, the court’s discretion to impose
physical restraints is constrained by constitutional principles.
Under California law, “a defendant cannot be subjected to
physical restraints of any kind in the courtroom while in the
jury’s presence, unless there is a showing of a manifest need for
such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290–
291.) Similarly, the federal “Constitution forbids the use of
visible shackles . . . unless that use is ‘justified by an essential

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state interest’ — such as the interest in courtroom security —
specific to the defendant on trial.” (Deck v. Missouri (2005) 544
U.S. 622, 624, italics omitted.) “ ‘We have held that these
principles also apply to the use of an electronic ‘stun belt,’ even
if this device is not visible to the jury.’ ” (Covarrubias, at p. 870.)
In determining whether a stun belt is justified, the court
must examine several factors, including the nature of the
security risk posed by the defendant, whether the defendant is
a flight risk, and whether the defendant will be disruptive.
(Covarrubias, supra, 1 Cal.5th at pp. 870–871.) Verbal
outbursts merely detrimental to a defendant’s own case, without
more, may not constitute sufficient justification. (See People v.
Mar (2002) 28 Cal.4th 1201, 1223, fn. 6.) A formal hearing is not
required, but the record must reflect that the court based its
determination that restraints were warranted “ ‘ “on facts, not
rumor and innuendo.” ’ ” (Covarrubias, at p. 871.) The decision
to impose restraints is reviewed for abuse of discretion. (Id. at
p. 870.) “ ‘The imposition of physical restraints without evidence
of violence, a threat of violence, or other nonconforming conduct
is an abuse of discretion.’ ” (Id. at p. 871, italics added.)
The court did not abuse its discretion by requiring that
defendants wear stun belts during the penalty phase retrial.
The record shows each defendant engaged in substantial
“ ‘nonconforming conduct’ ” justifying employment of the belts.
(Covarrubias, supra, 1 Cal.5th at p. 871.) Holmes called the
jurors “motherfuckers;” and subjected them to the ad hominem
attacks described above. McClain threatened a witness and
made a lewd gesture toward the jury. Newborn confronted the
prosecution with an expletive-laden outburst which, like
Holmes’s, made reference to the P-9 gang. This obscene,
disruptive, and threatening behavior was sufficient to justify

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the use of restraints, particularly considering the collective risk
posed by three individuals intent on emphasizing their
membership in a violent gang. The court was confronted with a
trio of volatile defendants. They had been convicted of
conspiring to commit, and then committing, exceptionally
violent crimes, subjecting them to life in prison or execution.
Under these circumstances there may be well-founded concern
that disruptive conduct by one will spur an outburst and
escalation by the others. The court’s decision to impose
restraints was not arbitrary, capricious, or patently absurd. (See
Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 390; People
v. Lomax (2010) 49 Cal.4th 530, 559.)
Defendants also argue the court improperly delegated to
bailiffs its decision regarding the need for security. The record
is to the contrary. Although bailiffs had suggested using stun
belts before the first penalty phase, the court made clear that
the decision to do so was its own. When explaining to McClain
the bounds of his self-representation, the court noted that
McClain would be wearing a stun belt “because of the past
activities.” Toward the end of the retrial, in discussing a late
severance motion, the court repeated that its decision to require
stun belts was “based on [defendants’] conduct,” a great deal of
which occurred in the court’s presence. The court stressed it had
made that decision for everyone’s benefit. There was no error.
ii. Disclosure of Restraints
During the penalty retrial, the trial court was informed
that McClain had threatened the bailiffs. Deputy Browning
testified in limine that McClain had threatened to kill him. As
Browning placed a stun belt on McClain in the holding cell,
McClain asked why the belt was warm. Browning explained it

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was warm because the belts were tested each morning. Newborn
then asked why the belts were tested. Browning said it was
departmental policy to ensure the belts were operational. In
response, McClain yelled from the cell, “If you do one of us, you’ll
have to do us all.” Browning said: “What?” and Newborn
repeated McClain’s comment. Then McClain said, “Don’t get
within two feet of me or I’ll kill you. We’ll all have weapons this
time.”
Holmes moved for severance and alternatively requested
that the incident, if admitted, be “sanitized” to avoid prejudicing
him. During the penalty retrial, Deputy Browning testified only
against McClain. He related that one morning, while placing “an
electronic device on each one of the defendants,” McClain said,
“Don’t get within two feet of me or I’ll kill you. I’ll [sic] have
weapons this time.” After the defense requested a limiting
instruction, the court told the jury that the devices are used to
“assure tranquility in the court, security for everyone. It does
not mean that [defendants] are guilty or not guilty,” and
specifically admonished that Browning’s testimony was not to
be considered against Holmes or Newborn.
Defendants now complain Browning’s testimony
improperly disclosed to the jury that they wore stun belts. No
error is apparent. The jury learned only that electronic devices
were placed on the defendants. The particular nature of the
devices, or any reason for their use, was never specified, nor did
the jury ever see one of the belts. Moreover, the court gave a
limiting instruction explaining that the devices did not imply
the defendants were “guilty or not.” Holmes and McClain
contend this instruction was insufficient to cure the error, but
they failed to object or seek additional, or different, instructions.

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The court’s instruction carefully refrained from mentioning that
the devices were used for restraint or immobilization.
Finally, despite Holmes’s current arguments, his attorney
was not ineffective in dealing with the evidence. We have
concluded the imposition of restraints was supported. Holmes’s
attorney asked the court to “sanitize” Deputy Browning’s
testimony to avoid prejudice to Holmes. The court did so.
Although Deputy Browning testified in limine that McClain
said, “We’ll all have weapons next time,” he told the jury
McClain said, “I’ll have weapons next time.” (Italics added.) The
court also provided a limiting instruction that Browning’s
testimony constituted aggravating evidence against McClain
only. Holmes does not argue, much less establish, that
“ ‘ “counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms” ’ ” or that,
“ ‘ “but for counsel’s failings, the result would have been more
favorable.” ’ ” (People v. Rices (2017) 4 Cal.5th 49, 80.) The jury
was not permitted to consider the fact that Holmes wore an
electronic device as a factor in aggravation against him. The
record does not reflect prejudice.
2. Evidentiary Issues
a. Video of Holmes’s Outburst
When the jury returned its guilty verdict against Holmes,
his rude retort and mention of P-9’s supremacy (see ante, at
pp. 14, 113) was recorded on videotape. The prosecution sought
to introduce this tape during the penalty retrial. Holmes
objected that his outburst merely expressed displeasure with
the verdict and did not evince P-9 affiliation or other
aggravating conduct under section 190.3. The court admitted
the tape. It acknowledged that, while the “P-9 rules” statement

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might be prejudicial, it was also “highly probative” on penalty
phase issues. The videotape was played for the jury, with
expletives removed. The prosecutor also read Holmes’s full
statement.
During argument, the prosecutor read a portion of
McClain’s testimony explaining that he went looking for rival
gang members to kill. The prosecutor argued, “That’s what Herb
McClain did with his homeys, Lorenzo [Newborn] and Karl
Holmes. They went out to smoke and kill Crips and you are here
today as a result of that. [¶] Why did they do it? Because they
are P-9 gang members intent on retaliating for the death of a
fellow P-9.” The prosecutor then played the expurgated tape of
Holmes’s outburst. During deliberation, the jury asked to review
the videotape.
McClain and Newborn now complain the court should
have instructed that Holmes’s outburst should be considered as
a factor in aggravation against Holmes alone, a request they
failed to make below. The court properly admitted it as to all
three, concluding there was evidence they were all P-9 members.
No defendant ever disputed P-9 membership, which was amply
proven.
Defendants next argue the court erred by admitting the
videotape and statement because a defendant’s lack of remorse
may not be admitted in aggravation unless and until the
defendant puts the question of remorse in issue. The arguments
fail to persuade. The evidence was not offered, nor argued, to
show lack of remorse. While there was substantial guilt phase
evidence about the P-9 gang, the tape was played at retrial to a
newly empaneled jury. Defendants’ gang membership was a
relevant circumstance of the crime, “ ‘admissible at a penalty

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retrial . . . under section 190.3.’ ” (People v. Banks (2014) 59
Cal.4th 1113, 1195; People v. Carter (2003) 30 Cal.4th 1166,
1194–1196.) “Thus, at least in cases in which the jury that
decides the penalty did not adjudicate the defendant’s guilt, we
have said it ‘ “ ‘is certainly the rule that if the evidence would
have been admissible on the trial of the guilt issue, it is
admissible on the trial aimed at fixing the penalty.’ ” ’ ” (Banks,
at p. 1195.)
b. McClain’s Threats to Deputies
McClain argues the court erred under section 190.3, factor
(b) by admitting evidence that he threatened Deputy Browning.
(See ante, at p. 115.) No error occurred. Deputies David Admire
and Les Tranberg gave similar testimony. Both heard McClain
tell Browning to stay away and that he would have a weapon,
although neither heard McClain say, “I’ll kill you.”
McClain first urges that the prosecution failed to provide
timely notice that evidence of the threat would be introduced in
aggravation. He failed to object on this basis. (See Dykes, supra,
46 Cal.4th at p. 756; see also People v. Mills (2010) 48 Cal.4th
158, 205.) Even if preserved, the claim fails. Although the
prosecution is required to provide notice of section 190.3, factor
(b) aggravating evidence, that requirement is satisfied when
notice is provided as soon as the information becomes known to
the prosecution. (People v. Whalen (2013) 56 Cal.4th 1, 73−74.)
McClain did not make the threat until the retrial was nearly
complete. It was then promptly brought to the attention of both
the court and the prosecution. An in limine hearing provided
timely and adequate notice to McClain. (See ibid.)
Second, seizing on comments from that hearing, McClain
claims the trial court improperly assumed the role of prosecutor

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“because it was irate that McClain allegedly threatened its
bailiff.” The record is contrary. The prosecution moved for an
Evidence Code section 402 hearing and sought admission of the
threat evidence. Although Deputy Browning did report the
threat to the trial court, it was the prosecutor who proffered the
evidence. The court fulfilled its proper role in ruling on
admissibility.
Third, McClain claims Browning improperly testified that
Newborn said “If you do one of us, you’ll have to do us all.”
Because he could not cross-examine Newborn, McClain
contends his right to confront the inculpatory statement was
violated. (See Aranda, supra, 63 Cal.2d 518; Bruton, supra, 391
U.S. 123). That argument fails. First, the statement was not
hearsay. It was not offered to prove the truth of the assertion
that an action against one would, as a matter of fact, require
action against all. Nor was it offered to establish the necessity
to employ the belts. Instead, it was offered to prove the threat
had been made. Second, Newborn was simply repeating what
McClain himself said to Browning. Newborn was not making an
independent inculpatory statement that tended to incriminate
McClain. Indeed, McClain made no objection to Browning’s
testimony about Newborn’s repetition. (See Dykes, supra, 46
Cal.4th at p. 756.)
Finally, McClain asserts the incident was improperly
admitted as a criminal threat because there was no evidence
Browning feared for his personal safety. Evidence of an
uncharged crime generally cannot be presented as an
aggravating factor “unless a ‘ “rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” ’ ” (People v. Boyd (1985) 38 Cal.3d 762, 778; see Jackson
v. Virginia, supra, 443 U.S. at pp. 318–319.) The essential

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elements of a criminal threat are: “(1) the defendant willfully
threatened death or great bodily injury to another person; (2)
the threat was made with the specific intent that it be taken as
a threat, regardless of the defendant’s intent to carry it out; (3)
the threat was ‘on its face and under the circumstances in which
it [was] made, . . . so unequivocal, unconditional, immediate,
and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution’; (4) the threat
caused the person threatened ‘to be in sustained fear for his or
her own safety or for his or her immediate family’s safety’; and
(5) this fear was reasonable under the circumstances. (§ 422,
subd. (a); see People v. Toledo (2001) 26 Cal.4th 221, 227–228
[109 Cal.Rptr.2d 315, 26 P.3d 1051].)” (People v. Turner (2020)
10 Cal.5th 786, 826, italics added.)57
McClain focuses on statements by the court suggesting the
bailiffs were not gravely concerned about safety because they
often received threats. However, Deputy Browning’s own
testimony was different. Browning testified that he wrote a
report after the incident requesting additional security in the
courtroom so that “court personnel . . . would not be endangered

57
At the time of trial, section 422 provided: “Any person who
willfully threatens to commit a crime which will result in death
or great bodily injury to another person, with the specific intent
that the statement is to be taken as a threat, even if there is no
intent of actually carrying it out, which, on its face and under
the circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate
prospect of execution of the threat, and thereby causes that
person reasonably to be in sustained fear for his or her own
safety or for his or her immediate family’s safety, shall be
punished by imprisonment in the county jail not to exceed one
year, or by imprisonment in the state prison.” (Former § 422.)

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or possibly killed.” This evidence may have suggested that the
death threat from a convicted murderer and admitted gang
member, who had previously engaged in seriously disruptive
conduct, placed Browning in sustained fear for the safety of
himself and his fellow deputies. McClain protests that, with the
stun belt on, he was incapable of doing harm; however
section 422 does not require an immediate ability or even an
actual intention, to carry out the threat. (People v. Wilson (2010)
186 Cal.App.4th 789, 807.) Finally, even if the “sustained fear”
element was lacking, there was ample proof that McClain
committed an attempted criminal threat (see People v. Toledo,
supra, 26 Cal.4that pp. 230–231, 234), a crime involving the
threat of force or violence and thus properly admitted in
aggravation under section 190.3, factor (b).
c. Newborn’s Threats to Louise Jernigan
The prosecution called Louise Jernigan to testify about
threats Newborn made against her. During the hearing to
determine the admissibility of her testimony, Jernigan stated,
among other things, that Newborn had cursed at her and said,
“You accused me of killing your son, and we’re going to get you,
too.” The trial court admitted her testimony as evidence of a
criminal threat. At the penalty retrial, Jernigan testified that
while visiting a friend’s business, Newborn “came in, [and] put
a gun to [her] side.” Although Jernigan did not see the gun when
Newborn entered, she could feel it pressing against her. She
claimed Newborn “want[ed] to shoot [her] because he knew that”
she knew “that he killed [her] son Keith,” who had been killed
only weeks earlier.” The court interjected with an instruction
that Jernigan’s statement was offered only to show her state of
mind and did not “go to the truth of the matter.” Jernigan then
testified that she pushed Newborn away but followed him

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outside, where they argued. After Newborn left, she called the
police. Additional evidence showed that during the incident
Jernigan accused Newborn of killing her son and Newborn said,
“Fuck you. You accused me of killing your son, and we’re going
to get you, too.”
Newborn asserts the court erred in admitting Jernigan’s
statements about Newborn having killed her son. However, the
evidence was admitted for a legitimate purpose. The altercation
was offered to show that Newborn had made criminal threats
against Jernigan (§ 422, subd (a)), actions involving “the express
or implied threat to use force or violence” under section 190.3,
factor (b). As discussed, a criminal threat under section 422
requires proof that the recipient feared for her safety, or that of
her family, and that the fear was reasonable under the
circumstances. (People v. Toledo, supra, 26 Cal.4th at pp. 227–
228.) These elements require an evaluation of the victim’s state
of mind. (Id. at p. 228.) Moreover, a threat must be examined
both “ ‘ “on its face and under the circumstances in which it was
made.” ’ ” (People v. Felix (2001) 92 Cal.App.4th 905, 914.)
Jernigan’s belief that Newborn was responsible for her son’s
death was relevant to show her state of mind at the time and to
explain the circumstances surrounding Newborn’s threat; her
belief was the source of the dispute with Newborn and thus
provided relevant context for understanding the meaning and
intent behind the threat.
Newborn next claims Jernigan’s accusation was unduly
prejudicial under Evidence Code section 352. The claim lacks
merit. Courts ordinarily enjoy broad discretion to evaluate
whether the probative value of evidence is outweighed by
concerns of undue prejudice, confusion, or consumption of time.
(People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) As noted,

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testimony regarding Jernigan’s belief and resulting accusations
demonstrated the very reason for Newborn’s threat and
provided essential context for it. The trial court was within its
discretion in determining this probative value was not
substantially outweighed by the risk of undue prejudice and
provided a limiting instruction to explain the proper use of
Jernigan’s testimony.
d. Holding Cell Graffiti
Over objection, the prosecution was allowed to introduce
evidence of graffiti found in the courtroom’s holding cell.
Defendants contend this was error because the graffiti did not
constitute a threat and there was insufficient evidence to
demonstrate that any of the defendants produced the graffiti.
Any error in admitting the evidence did not prejudice
defendants.
Arguing admissibility, the prosecutor described
photographs of the graffiti: “the first photograph displays a P-
9, the word ‘Monsta’ on top of it. Within the P [are] the words
Parke Street and within the 9” are “the word[s] Nine Lives.”
“[T]he words P-9” were written below. “Next to it is ‘Blood Gang’
and beneath are the notations: ‘Boom 1,’ ‘Sunday Shoes 1 and
Monsta Herb 1.’ ” “Beneath these words are the words ‘Anybody
killa,’ K-I-L-L-A, Sheriff, spelled S-H-I-R-E-F-F, police and
again the word ‘killa.’ ” Officer Carlos Lopez testified in the
penalty phase that Holmes’s nickname was “Boom” and
Newborn’s nickname was “Sunday Shoes.” Although “Monsta
Herb 1” was not a known nickname, McClain’s first name is
Herbert. He introduced himself as “Herb” to a fellow passenger
as he was flying out of state. The prosecutor argued that
crossing out the words “police” and sheriff” indicated police

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officers and sheriff’s deputies were intended murder targets of
the graffiti artists. The court ruled the graffiti admissible,
concluding it was “highly relevant and probative,” and any
prejudice was “outweighed by the fact” that the graffiti named
each “of the three defendants.”
Assuming without deciding this evidence was erroneously
admitted, we conclude there is no reasonable possibility
different penalty verdicts would have been reached had it been
excluded. (See People v. Silveria and Travis, supra, 10 Cal.5th
at pp. 265–266.) The reference to the graffiti was relatively
vague. Particularly when considered within the context of a
lengthy trial, it was relatively brief. Admission of the graffiti
accomplished little more than confirm defendants were
members of the P-9 gang and engaged in threatening conduct
toward law enforcement, as demonstrated by other evidence.
Any error in admitting the graffiti was harmless. (Ibid.)
e. Holmes’s Juvenile Weapon Possession
At age 15, Holmes was found to possess a loaded firearm,
in violation of section 12031. Over objection, the court allowed
the prosecution to present this juvenile adjudication as
aggravating evidence. A police officer testified that after Holmes
was seen at a carnival with a gun in his pants pocket, he was
arrested and found to possess a loaded revolver. Holmes now
argues this juvenile adjudication was inadmissible under
section 190.3, factor (b). Not so.
Section 190.3, factor (b) permits evidence of a defendant’s
criminal activity involving “the use or attempted use of force or
violence or the express or implied threat to use force or violence.”
Holmes argues his offense did not involve the use of force or
violence because he never acted violently, cooperated fully when

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arrested, and only carried the revolver to ensure his own safety.
Former section 12031 prohibits “carrying a loaded firearm . . .
in any public place.” Although firearm possession is not a
factor (b) offense in every circumstance, “ ‘[t]he factual
circumstances surrounding the possession . . . may indicate an
implied threat of violence.’ ” (People v. Jackson (2014) 58 Cal.4th
724, 759.) If so, admission of the offense under factor (b) is
appropriate. Here, Holmes was walking through a crowded
carnival with a loaded pistol protruding visibly from his pants
pocket. His demeanor and display of the weapon possession
were sufficiently concerning that someone reported him to the
authorities. Especially in view of the fact that similar firearms
were used in committing the crimes here, “the jury legitimately
could infer an implied threat of violence from all the
circumstances” surrounding Holmes gun possession. (Dykes,
supra, 46 Cal.4th at p. 777; see also Jackson, at pp. 759–760.)
The court did not abuse its discretion in admitting the evidence.
f. Exclusion of Former Codefendants’ Favorable
Dispositions
The prosecution moved to exclude evidence that
codefendants Bowen and Bailey entered into negotiated
dispositions that did not include the death penalty. Defendants
did not object, and the trial court granted the motion.
Defendants now argue their due process and Eighth
Amendment rights were violated because Bowen and Bailey
were equally or more culpable but received more favorable
sentences. This claim was forfeited by defendants’ failure to
object (see Dykes, supra, 46 Cal.4th at p. 756) and lacks merit.
“It is well established that ‘[t]he punishment meted out to
a codefendant is irrelevant to the decision the jury must make
at the penalty phase: whether the defendant before it should be

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sentenced to death.’ ” (People v. Turner (1994) 8 Cal.4th 137,
206; see also People v. Beardslee (1991) 53 Cal.3d 68, 111–112.)
Defendants rely instead on a federal court concurring opinion,
which suggested the jury should be permitted to consider an
equally culpable codefendant’s disposition in mitigation. (See
Morris v. Ylst (9th Cir. 2006) 447 F.3d 735, 746–748 (conc. opn.
of Ferguson, J.).) Leaving aside the persuasive value of the
concurrence, which is unbinding on this or any court, the
comparison is inapt. There is no evidence to establish that
Bowen and Bailey were equally culpable with the defendants
here. The trials were severed, and no showing was made as to
the relative degree of involvement or other factors that might
relate to culpability. Defendants also failed to establish that the
government sought the death penalty for them but not for Bailey
and Bowen. (See id. at p. 747 (conc. opn. of Ferguson, J.).) The
prosecution reminded the court that the evidence related to
Bowen and Bailey differed in significant respects from the
evidence against these defendants. Unlike the defendants in
Morris v. Ylst, the prosecution’s position here was that Bowen
and Bailey were not “equally guilty” compared to defendants.
(Id. at p. 746 (conc. opn. of Ferguson, J.).). The trial court did not
err in excluding the evidence.
g. Lingering Doubt Evidence
All defendants raise various claims related to lingering
doubt evidence. We reject them.
i. Newborn and Holmes
Newborn and Holmes contend the court improperly
prohibited them from introducing evidence from the first trial to
create lingering doubt. (See Oregon v. Guzek (2006) 546 U.S.
517, 519.) Their claim fails because they offered none. Contrary

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to their assertions, the record reflects that neither of them
sought to present evidence of this nature. (See Evid. Code, § 354,
subd. (a).) Newborn argues the first penalty jury received
substantially more evidence concerning innocence but points to
none he was prevented from introducing. Holmes complains
McClain was prevented from offering testimony from an
eyewitness expert, but he points to no evidence of his own that
was barred. Neither defendant preserved a claim of improper
evidentiary exclusion.
ii. McClain
McClain claims the court improperly excluded lingering
doubt evidence that he did seek to introduce. Although some of
this evidence should have been admitted, the error was
harmless.
There is no federal or state constitutional right to present
lingering doubt evidence. (Franklin v. Lynaugh (1988) 487 U.S.
164, 173−174; People v. Cox (1991) 53 Cal.3d 618, 675.) However,
we have held as a matter of state law that “evidence of the
circumstances of the offense, including evidence that may create
a lingering doubt as to the defendant’s guilt of the offense, is
admissible at a penalty retrial as a factor in mitigation under
section 190.3.” (People v. Hamilton (2009) 45 Cal.4th 863, 912
(Hamilton); see People v. Gay (2008) 42 Cal.4th 1195, 1221
(Gay).) These holdings do not mean defendants are free to
relitigate a guilty verdict, even at a penalty retrial. “A defendant
. . . has no right to introduce evidence not otherwise admissible
at the penalty phase for the purpose of creating a doubt as to his
or her guilt. [Citations.] ‘ “The test for admissibility is not
whether the evidence tends to prove the defendant did not
commit the crime, but, whether it relates to the circumstances

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of the crime or the aggravating or mitigating circumstances.”
[Citation.]’ [Citation.] The evidence must not be unreliable
[citation], incompetent, irrelevant, lack probative value, or
solely attack the legality of the prior adjudication [citations].”
(Hamilton, at p. 912.)
McClain sought to present testimony from severed
codefendants Bowen and Bailey about their plea agreement and
McClain’s purported lack of involvement in the murders. He
argued these men could tell the jury whether he was present or
not at the shooting scene and “if they [had] seen [him] at any
time during the night.” The court denied the request, explaining
it was not appropriate evidence for the penalty phase. This
ruling was within the court’s discretion. It was clear from
McClain’s offer of proof that he was merely speculating about
the evidence Bowen and Bailey might provide. He made no
specific offer of proof. Neither man testified in the guilt phase
trial, and McClain did not claim he was aware from any source
that they were present at the crime scene. He apparently based
his speculation on the men’s negotiated dispositions, but, as the
prosecutor noted, they had steadfastly refused to admit guilt.
Because McClain offered no basis for the court to conclude
Bowen and Bailey would provide admissible evidence about the
circumstances of the crime, the court did not err in excluding
their testimony. (See Hamilton, supra, 45 Cal.4th at p. 912.)
The analysis is different for eyewitness expert Kathy
Pezdek. McClain sought to present Pezdek’s testimony to refute
Gabriel Pina’s identification of him as the driver of the lead car
on Wilson Street. The trial court denied the request, reasoning
that identity was not an issue at the penalty phase and the
evidence would be irrelevant. To the contrary, the proffered
testimony was relevant as to lingering doubt, and section 190.3

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makes such lingering doubt evidence admissible at a penalty
retrial. (Gay, supra, 42 Cal.4th at pp. 1219−1221.) Pezdek
testified in the guilt phase. Her testimony remained relevant
and should have been admitted in the penalty retrial. (Id. at
pp. 1219-1220; see People v. Banks, supra, 59 Cal.4th at p.
1195.) However, the error was harmless because there is no
reasonable possibility it affected the penalty verdict. (See
Hamilton, supra, 45 Cal.4th at p. 912.) Pezdek’s guilt phase
testimony primarily established that eyewitnesses can be
fallible. Yet Pina was thoroughly cross-examined in the penalty
retrial, with similar attacks on the accuracy of his identification.
Finally, significant aggravating evidence was presented against
McClain. Beyond the circumstances of the crimes, which
involved the gang-related murder of innocent children, there
was evidence of McClain’s four prior felony convictions and
three unadjudicated instances of violent conduct. In light of this
evidence, there is no reasonable possibility the jury would have
reached a different verdict if presented with Pezdek’s expert
testimony on identification.
iii. Prosecutorial Misconduct
Holmes and McClain argue the prosecutor committed
misconduct in arguments related to lingering doubt. If
prosecutorial misconduct renders a trial so fundamentally
unfair that the conviction constitutes a denial of due process, it
violates the federal Constitution. (Covarrubias, supra, 1 Cal.5th
at p. 894.) “ ‘ “[M]isconduct that does not render a trial
fundamentally unfair nevertheless violates California law if it
involves ‘the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’ ” ’ ” (Ibid.)
Even if these claims had been preserved (see Dykes, supra, 46
Cal.4th at p. 756; see also Winbush, supra, 2 Cal.5th at p. 481),

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they lack merit. The arguments complained of did not constitute
misconduct.
Holmes asserts it was misconduct for the prosecutor to
argue that jurors “must accept the verdicts and findings
rendered by the jury in the guilt phase of this trial.” He claims
the argument required jurors to “assume the worst about the
circumstances of the offense” and thus deprived him of
“individualized and non-arbitrary sentencing.” A prosecutorial
misconduct claim is not preserved for appeal unless the
defendant made a timely objection on the same ground and
asked that the jury be admonished to disregard the impropriety.
(Covarrubias, supra, 1 Cal.5th at pp. 893–894.) Holmes’s lack of
objection below forfeits the claim. Further, there was no
misconduct. The prosecutor did no more than paraphrase the
special instruction on lingering doubt the jury was about to
receive. It stated, “as a penalty jury, you must ‘accept’ the guilt
phase verdicts and findings.” The rule strikes a balance. A guilt
conviction establishes the facts were proven beyond a
reasonable doubt. The fact that there may yet be a residual
“lingering doubt” may be considered by the jury as a fact
militating against a death sentence. That does not mean,
however, that the new penalty jury is entitled to ignore a prior,
and properly arrived at, guilt determination. The prosecutor’s
reference to this principle did not violate due process or use
improper methods of persuasion.
McClain raises two misconduct claims. First, he contends
the prosecutor made misrepresentations to the court about the
pleas of Bowen and Bailey. When McClain proposed calling
these original codefendants, the prosecutor responded that
although they had pled guilty they did not admit guilt. He said
both men had “consistently denied being present at the shooting

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scene or having any involvement in the shooting,” and expressed
doubt about how they could testify to McClain’s absence from
the scene. McClain disagreed but did not object to the
prosecutor’s comments. (See Dykes, supra, 46 Cal.4th at p. 756;
see also Winbush, supra, 2 Cal.5th at p. 481.) On the merits, the
statement was not misconduct because it merely reflected the
prosecutor’s good faith belief about the codefendants’ plea
agreements. In fact, the court was already aware of these
agreements. McClain has not shown that the prosecutor’s
statements about Bowen and Bailey were false, and there is no
reasonable likelihood the court was misled by his argument.
Second, McClain asserts it was misconduct for the
prosecutor to assert in closing argument that McClain had failed
to present lingering doubt evidence. After McClain objected that
he was not given the opportunity to present such evidence, the
prosecutor clarified that the defense had no burden, “but they
[did] have the opportunity.” This argument was neither
reprehensible nor deceptive. (Covarrubias, supra, 1 Cal.5th at
p. 894.) Other than testimony from eyewitness expert Pezdek
(see ante, at p. 128), McClain did not attempt to present
lingering doubt evidence. Contrary to his assertions, the court
did not preclude all lingering doubt testimony. It allowed
Holmes to call Gabriel Pina to challenge his eyewitness
identification, and, as noted, McClain was able to elicit
concessions from Pina on cross-examination. McClain offered no
further evidence of his own on lingering doubt after the Pezdek
ruling. A prosecutor enjoys a wide latitude in closing argument
and “ ‘has the right to fully state his views as to what the
evidence shows and to urge whatever conclusions he deems
proper.’ ” (People v. Valencia (2008) 43 Cal.4th 268, 284.) The

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argument here was permissible commentary on the state of
McClain’s evidence.
iv. Instructional Error
During deliberations, jurors sent a note asking whether
they could review testimony from the prior trial and whether
there was “any other eyewitness testimony or independent
investigation.” The court responded that Pina’s identification
“was only part of the evidence at the trial of the guilt phase.”
Other evidence had been presented, but the court admonished
the jury not to speculate about it. It instructed: “For the
purposes of your duties in this trial you must accept the fact that
there was sufficient evidence beyond a reasonable doubt to
convict the defendants of the charges against them.” It also
reread the special instruction on lingering doubt. It explained:
“Lingering doubts as to guilt may be considered as a factor in
mitigation. A lingering doubt is defined as any doubt, however
slight, which is not sufficient to create in the mind of a juror a
reasonable doubt.”
McClain now complains this instruction was ambiguous
and open to erroneous interpretation because the court
prevented him from presenting evidence to support a lingering
doubt defense. The premise of this argument fails because, apart
from one witness, the court did not erroneously exclude
lingering doubt evidence or prevent McClain from offering it.
Nor is the instruction itself constitutionally infirm. The
instruction here resembles one given in Hamilton, which stated
that “ ‘lingering doubts . . . on the question of guilt may be
considered by [the jury] in determining the appropriate penalty.
[¶] A lingering doubt is defined as any doubt, however slight,
which is not sufficient to create in the minds of the jurors a

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reasonable doubt.’ ” (Hamilton, supra, 45 Cal.4th at p. 949,
italics omitted.) Hamilton held that this instruction, coupled
with counsel’s argument, was sufficient to inform the jury of the
role lingering doubt could properly play in its penalty
determination. (Id. at pp. 948–949.)
The jury in Hamilton also sought clarification about
lingering doubt, asking “ ‘if we have questions, however slight,
“lingering doubt,” about the conviction for murder (in the 1st
trial) is that appropriate? In other words is that to be considered
as mitigating or at all.’ ” (Hamilton, supra, 45 Cal.4th at p. 949.)
The court directed jurors to the lingering doubt instruction, and
Hamilton claimed this response was inadequate. (Ibid.) We
concluded otherwise, explaining that the question revealed the
jury’s confusion as to whether a slight doubt was enough to
constitute a mitigating factor or if it had no place in the penalty
deliberation. (Id. at p. 950.) Although the jury’s question here
was different, it does not cast doubt on the validity of the
lingering doubt instruction. Indeed, the jurors’ question
revealed no uncertainty about the instruction at all. It simply
asked whether the jury was permitted to obtain additional
evidence and, if so, what that evidence might be. The court
properly directed the jury’s attention away from evidence
presented at the first trial and, as in Hamilton, instructed on
the role lingering doubt might play in their deliberations, based
on the evidence they heard. The instruction was not erroneous
or ambiguous, and the court did not err in giving it.
h. Character Evidence Elicited from Clarence
Jones
McClain asserts several errors in connection with the
testimony of his witness Clarence Jones. No error occurred.

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McClain called Jones, a county jail inmate and longtime
acquaintance. In aggravation, the prosecution had offered
evidence that, in 1995, McClain had tried to attack another
inmate and was found in possession of a shank. It appears
McClain called Jones to counter that evidence. After Jones was
sworn, McClain stated: “I called you today to get a better
understanding from your point of view on the tiers.” He then
asked about “an incident [that] occurred involving a shank or
some type of an assault on the tier in 3100,” and whether Jones
saw “any weapons in anybody’s hand?” Jones said he
remembered the incident but saw no weapon. McClain then
asked: “Would it be uncommon, particularly in a racial incident,
for someone else to throw a weapon out on the tier?” The
prosecution objected that the question called for speculation and
lacked foundation.
The court then asked several foundational questions.
These established that Jones had been the county jail for about
a year, had been there before, and had seen similar incidents.
He knew what a shank is and how they are made. Following
these answers, the court said: “The gentleman is an expert in, I
guess, what you [McClain] are asking.” McClain made no
objection to the court’s questioning or its conclusion. McClain
then asked: “So would it be unusual, say, for one race person to
be involved in an altercation with a person of another race and
somebody would take it upon themselves to throw some type of
weapon as an aid to that person?” Jones nodded and McClain
said: “No further questions.” The court confirmed that Jones
intended his nod as affirmation.
McClain now complains the court improperly elicited
character evidence from Jones and failed to act impartially by
questioning the witness. The claim is forfeit (see Dykes, supra,

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46 Cal.4th at p. 756) and meritless. “Evidence Code section 775
‘ “ ‘confers upon the trial judge the power, discretion and
affirmative duty . . . [to] participate in the examination of
witnesses whenever he believes that he may fairly aid in
eliciting the truth, in preventing misunderstanding, in
clarifying the testimony or covering omissions, in allowing a
witness his right of explanation, and in eliciting facts material
to a just determination of the cause.’ ” [Citations.] [¶] The
constraints on the trial judge’s questioning of witnesses in the
presence of a jury are akin to the limitations on the court’s role
as commentator. The trial judge’s interrogation “must be . . .
temperate, nonargumentative, and scrupulously fair.” ’ ” (People
v. Harris (2005) 37 Cal.4th 310, 350 (Harris).) The court adhered
to those requirements. It merely helped the self-represented
McClain lay a proper foundation for the questions he wanted to
ask.
The question about whether something might be
“unusual” in a jail setting called for information beyond the
common experience of jurors. Accordingly, it was appropriate to
establish that Jones had “special knowledge, skill, experience,
training, or education” to permit him to give the expert opinion
McClain sought on the presence of weapons in jail, how they
might be deployed, by whom, and under what circumstances.
(Evid. Code, § 720, subd. (a).) The court’s questions did not call
for, or elicit, character evidence about McClain.
McClain urges that questioning by the court is improper
when attorneys are performing competently. His failure to lay
foundation for his questions and make their significance clear,
was not competent performance. The court has the authority
and obligation to appropriately control and expedite
proceedings. (Harris, supra, 37 Cal.4th at p. 348.) Its conduct

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reflected no bias. On the contrary, it was an efficient way for the
court to help McClain examine a witness effectively and advance
the proceedings.
McClain also objects to aspects of cross-examination.
Inquiry established that, contrary to his direct testimony, Jones
was not present when the incident in question occurred and that
he knew nothing about the circumstances. Jones also asserted
that he had never been involved in an attack on an inmate or
deputy. Questioning then turned to the witness’s conviction
history. It revealed that he had recently been convicted of
robbery and carjacking and sentenced to prison. Jones asked:
“Am I on trial or what? Then said: “I take the 5th.” He did not
give answers about other felony convictions. The prosecutor
turned to the relationship between Jones and McClain, eliciting
that they had known each other for 10 to 20 years. After
ultimately securing admissions that Jones suffered other felony
convictions, the examination ended.
McClain chose to conduct a redirect examination. This
colloquy ensued:
“Q [by McClain]: Mr. Jones, I brought you here to give the
jury a better - - another point of view of exactly what goes on the
tier, not for you to be put on trial, right?
“A [by Jones]: Right.
“Q: Just so you don’t feel uncomfortable, I just want to
pass that to you.
“A: Right.”
McClain said he had “no further questions.” However,
Jones sought to say more, relating in part: “I’ve been knowing
this guy for quite a long time and as far as, you know, my opinion

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of him, he’s a good guy and he’s not what these people claim that
he is. And I feel, you know, further down life’s road that his
innocence will be proven, that he is really innocent of the crime
he is being, you know, placed under.” McClain did not object, or
ask the statements be stricken. The court asked if there was
additional recross-examination. Jones interjected: “I am not
finished your honor.” He went on to say that the death penalty
was pursued unevenly and that “I don’t think it’s fair, you know,
for the young brother, you know, to be found guilty on a D.P.”
Again, McClain made no motion to strike, electing to let the
testimony stand. Recross questioning turned again to one of
Jones’s felony convictions and McClain objected as “outside the
scope.” The court overruled the objection, explaining: “You
brought him here. He is giving a character reference for you. The
court let him answer your questions.” In response to further
questions Jones gave a number of rambling answers, during
which he asserted the following. He repeatedly insisted he was
“treated unfair every time I went through the court system.” He
was convicted of robbery because “my counsel didn’t represent
me right. I was forced to go in pro per. And that’s the only reason
why I sat in the jury trial and got convicted.” In connection with
his assertion of repeated unfair treatment, the prosecution
asked about other cases in which Jones was convicted but given
probation with minimal or concurrent sentences, and whether
he considered those dispositions unfair. Jones agreed that
during one appearance he had been shackled but insisted it was
“for no reason.” There was no indication that he was currently
shackled. The examination ended with the following exchange:
“Q [by the prosecution]: You are not a dangerous man, are
you?
“A [by Jones]: No.”

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There was no objection, and all the answers were allowed to
stand. Again, McClain chose to probe further and the following
exchange took place:
“Q [by McClain]: I mean it’s obvious the way they bring
you in here with all those chains, they are trying to paint a
picture you are some dangerous dude.
“A [by Jones]: Exactly. . . . From my understanding, as far
as this black thing around here [apparently referring to a stun
belt] this is a zapper, and this is not supposed to be exposed to
the jury. . . . I told the sheriff downstairs that the picture that
they are painting, you know, for the jury on me, you know.
“Q: Would inadvertently reflect on me?
“A: Yes, exactly.”
At this point the prosecutor said: “I would ask the court to
admonish the jury that nothing concerning this shackling
should reflect upon Mr. McClain.”
McClain’s assertion of error fails on this record. A
witness’s credibility may be impeached with evidence of felony
convictions. (Evid. Code, § 788.) As relevant here, in evaluating
credibility, the fact finder is also permitted to consider the
witness’s demeanor while testifying and the manner in which he
testifies; the character of his testimony; his opportunity to
perceive any matter about which he testifies; the existence or
nonexistence of a bias, interest, or other motive; and his attitude
toward the action in which he testifies or toward the giving of
testimony. (Evid. Code, § 780, subds. (a), (b), (d), (f), (j).) The vast
majority of the cross-examination questions addressed these
factors or followed up on statements that the witness gave
during direct. To the extent some of the colloquy may have
strayed off course, much was solicited by questions McClain

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himself asked, by his own comments, and by his other tactical
choices. His only objection during the cross-examination was to
questioning “beyond the scope.” He declined to ask that any
answer be stricken and repeatedly gave his witness an
opportunity to speak further. The court gave him very broad
latitude in presenting the witness, permitting McClain to made
declaratory and argumentative statements, comment on the
proceedings and ask leading questions. No error appears.
The prosecutor’s questions about a previous shackling
were asked to probe Jones’s repeated assertions that he had
been treated unfairly “every time [he] went through the court
system.” The questions were unobjected to. At no time did the
prosecutor suggest or allude to the fact that Jones was shackled
during his testimony here.
Finally, McClain argues the court erred by forcing Jones
to appear in shackles. Because McClain never objected on this
ground the claim is forfeited. (See Dykes, supra, 46 Cal.4th at
p. 756; see also People v. Stankewitz (1990) 51 Cal.3d 72, 95.)
The record does not indicate that any shackles or restraints
were observable by the jury. Before Jones was called, there was
some testimony and a discussion about exhibits, all of which
took place in the jury’s presence. McClain was then asked if he
was ready to present a witness or witnesses. The court inquired
if a break was needed. The bailiff indicated that the witness was
“outside in the hall,” and they were ready to proceed.
Whereupon there was a “pause in the proceedings,” after which
Jones was sworn and examinations began. It appears it was
McClain who brought Jones’s restraints to the jury’s attention.
On redirect examination, McClain pointed out that Jones was
shackled. After Jones was dismissed, the court admonished the

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Opinion of the Court by Corrigan, J.

jury that the fact that Jones was “shackled and brought here
with deputies has no reflection on Mr. McClain.”
To the extent there was any irregularity, McClain cannot
be heard to complain. “Under the doctrine of invited error, when
a party by its own conduct induces the commission of error, it
may not claim on appeal that the judgment should be reversed
because of that error.” (Mary M. v. City of Los Angeles (1991) 54
Cal.3d 202, 212.) Moreover, it was unlikely McClain suffered
prejudice from the shackling of his witness. “[A]lthough the
limitation on physical restraints applies to defense witnesses as
well as defendants, ‘the prejudicial effect of shackling defense
witnesses is less consequential since “the shackled witness . . .
[does] not directly affect the presumption of innocence.” ’ ”
(People v. Allen (1986) 42 Cal.3d 1222, 1264–1265, quoting
People v. Duran, supra, 16 Cal.3d at p. 288, fn. 4.) The court
appropriately dispelled any potential prejudice from Jones’s
appearance with its admonition following his testimony.
3. Restriction on Closing Argument
Newborn argues the court improperly restricted his
attorney’s ability to argue the appropriate role of mercy in
capital sentencing. The court committed no error.
During closing argument, Newborn’s attorney addressed
CALJIC No. 8.85, factor (k) evidence and explained that the jury
should not simply weigh factors in aggravation and mitigation
as if “keeping score.” He argued, “If you had only factors in
aggravation and little, if any, factors in mitigation, something
as little and simple as mercy, you could still vote life without
parole.” The court sustained an objection that the argument
misstated the law and suggested Newborn’s attorney “argue it
another way.” Newborn’s attorney then quoted from CALJIC

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Opinion of the Court by Corrigan, J.

No. 8.85 that the jury could consider “ ‘any other circumstance
which extenuates the gravity of the crime, even though it is not
a legal excuse for the crime, and any other sympathetic or other
aspect of the defendant’s character.’ ” He added, “That is what I
am trying to say. And I am asking you to consider all of these
things, including everything that everybody has said, including
mercy; because mercy is twice blessed. That is an old saying and
I hope you don’t find it corny.” The court overruled the
prosecutor’s objection and explained that counsel was permitted
to explain the concept of mercy. Newborn’s attorney continued,
explaining that “twice blessed” means mercy “is blessed by the
person receiving it, but it is also . . . a blessing to the person who
gives it.”58
Newborn argues the court erred when it sustained the
prosecutor’s first objection, leaving jurors with a misimpression
about the role of mercy in capital sentencing. Not so. Counsel’s
argument was confusing and potentially suggested that the jury
could ignore aggravating and mitigating factors and base its
penalty decision entirely on a decision to exercise mercy. We
disapproved an instruction along analogous lines in People v.
Lewis (2001) 26 Cal.4th 334, 393. For similar reasons, we have
repeatedly held it is not error for courts to omit the word
“ ‘mercy’ ” in jury instructions. (People v. Ervine (2009) 47
Cal.4th 745, 801.) The court here did not err in sustaining an
objection to argument that encouraged jurors to decide penalty
based on “an emotional response to the mitigating evidence

58
The reference appears to be a paraphrase of Shakespeare:
“The quality of mercy is not strain’d / It droppeth as the gentle
rain from heaven / Upon the place beneath: it is twice blest; / It
blesseth him that gives and him that takes.” (Shakespeare, The
Merchant of Venice, act IV, scene 1, lines 184–187.)

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instead of a reasoned moral response.” (Id. at p. 802; see also
People v. Boyce (2014) 59 Cal.4th 672, 707.) Moreover, despite
the one sustained objection, the court permitted Newborn’s
counsel to explore the concept of mercy in detail, and it was
mentioned several times throughout the argument. The court’s
ruling was an appropriate exercise of its discretion and not
error. (See People v. Simon (2016) 1 Cal.5th 98, 147.)
4. Instruction Issues
a. Sentencing Discretion (CALJIC No. 8.88)
McClain and Holmes contend CALJIC No. 8.8859 is
unconstitutional in various respects. We have repeatedly

59
CALJIC No. 8.88 provided in part: “It is now your duty to
determine which of the two penalties, death or confinement in
the state prison for life without possibility of parole, shall be
imposed on each defendant. [¶] After having heard all of the
evidence, and after having heard and considered the arguments
of counsel, you shall consider, take into account and be guided
by the applicable factors of aggravating and mitigating
circumstances upon which you have been instructed. [¶] An
aggravating factor is any fact, condition or event attending the
commission of a crime which increases its guilt or enormity, or
adds to its injurious consequences which is above and beyond
the elements of the crime itself. A mitigating circumstance is
any fact, condition or event which as such, does not constitute a
justification or excuse for the crime in question, but may be
considered as an extenuating circumstance in determining the
appropriateness of the death penalty. [¶] The weighing of
aggravating and mitigating circumstances does not mean a
mere mechanical counting of factors on each side of an
imaginary scale, or the arbitrary assignment of weights to any
of them. You are free to assign whatever moral or sympathetic
value you deem appropriate to each and all of the various factors
you are permitted to consider. In weighing the various
circumstances you determine under the relevant evidence which
penalty is justified and appropriate by considering the totality

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rejected similar claims. The instruction is legally sound and
provides appropriate guidance on how the jury should approach
its task in determining the appropriate penalty. “ ‘[T]he
instruction is “not unconstitutional for failing to inform the jury
that: (a) death must be the appropriate penalty, not just a
warranted penalty [citation]; (b) [a sentence of life without the
possibility of parole] is required, if it finds that the mitigating
circumstances outweigh those in aggravation [citation] or that
the aggravating circumstances do not outweigh those in
mitigation [citation]; (c) [a sentence of life without the possibility
of parole] may be imposed even if the aggravating circumstances
outweigh those in mitigation [citation]; [and] (d) neither party
bears the burden of persuasion on the penalty
determination.” ’ ” (People v. Garton (2018) 4 Cal.5th 485, 523;
see also People v. Linton, supra, 56 Cal.4th at p. 1211.)
b. Failure to Define Life Without the Possibility of
Parole
McClain and Holmes argue the trial court had a sua
sponte duty to instruct the jury on the meaning of life without
the possibility of parole. We have previously rejected similar
claims, explaining “the term has a plain meaning that does not
require further explanation.” (People v. Watson (2008) 43
Cal.4th 652, 700.) Defendants do not persuade us to hold
otherwise.

of the aggravating circumstances with the totality of the
mitigating circumstances. To return a judgment of death, each
of you must be persuaded that the aggravating circumstances
are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without
parole.”

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5. Challenges to Death Penalty Statutory Scheme
Defendants raise a number of challenges to California’s
death penalty law, each of which we have previously rejected.
We decline to reconsider our holdings as follows:
• Section 190.3, factor (a), which permits a jury to consider
circumstances of the offense in sentencing, does not result
in arbitrary or capricious imposition of the death penalty
in violation of the Fifth, Sixth, Eighth, or Fourteenth
Amendments to the United States Constitution. (People v.
Simon, supra, 1 Cal.5th at p. 149.)
• California’s death penalty scheme does not violate the
federal Constitution for “ ‘failing to require . . . unanimity
as to aggravating factors [and] proof of all aggravating
factors beyond a reasonable doubt,’ ” and Apprendi v. New
Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536
U.S. 584 do not alter this conclusion. (People v. Lopez
(2018) 5 Cal.5th 339, 370; see Lewis, supra, 43 Cal.4th at
p. 533.)
• The lack of written jury findings in the penalty phase does
not violate due process or the Eighth Amendment, nor
does it “deprive a capital defendant of meaningful
appellate review.” (Winbush, supra, 2 Cal.5th at p. 490.)
• “Intercase proportionality review, comparing defendant’s
case to other murder cases to assess relative culpability, is
not required by the due process, equal protection, fair
trial, or cruel and unusual punishment clauses of the
federal Constitution.” (Winbush, supra, 2 Cal.5th at p.
490.)
• The jury’s consideration of unadjudicated criminal activity
as a factor in aggravation under section 190.3, factor (b)
does not violate due process or the Fifth, Sixth, Eighth, or

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Opinion of the Court by Corrigan, J.

Fourteenth Amendments, or render the death sentence
unreliable. (People v. Spencer (2018) 5 Cal.5th 642, 695.)
• The use of adjectives in the list of mitigation factors,
including the terms “extreme” and “substantial,” do not
prevent the jury’s consideration of mitigation in violation
of the Fifth, Sixth, Eighth, or Fourteenth Amendments to
the United States Constitution. (People v. Mora and
Rangel (2018) 5 Cal.5th 442, 519.)
• The jury need not have been instructed that factors in
mitigation could be considered solely for purposes of
mitigation. (People v. Landry (2016) 2 Cal.5th 52, 123.)
• The trial court was not required to delete inapplicable
sentencing factors from CALJIC No. 8.85. (People v.
Jackson (2016) 1 Cal.5th 269, 372.)
• “ ‘California’s death penalty law does not violate equal
protection by treating capital and noncapital defendants
differently.’ ” (People v. Anderson (2018) 5 Cal.5th 372,
425.)
• California’s death penalty statute does not violate
international law. (People v. Anderson, supra, 5 Cal.5th at
p. 425; see also Sánchez, supra, 63 Cal.4th at p. 488.)
• “ ‘California’s death penalty law “adequately narrows the
class of murderers subject to the death penalty” and does
not violate the Eighth Amendment.’ ” (People v. Lopez,
supra, 5 Cal.5th at p. 370.)
• Finally, “California’s grant of discretion to prosecutors to
decide in which cases to seek the death penalty is
constitutional.” (People v. Gamache, supra, 48 Cal.4th at
p. 406; see also People v. Rundle (2008) 43 Cal.4th 76, 199;
People v. Tafoya (2007) 42 Cal.4th 147, 198.)

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Opinion of the Court by Corrigan, J.

C. Cumulative Error
McClain and Holmes contend the cumulative prejudicial
effect of errors in the guilt and penalty phases of their trials
require reversal of their convictions and sentences of death. We
have rejected the vast majority of their assignments of error. In
the few instances in which we have found or assumed error, we
have determined no prejudice resulted. Whether the claims are
considered separately or together, no prejudicial error resulted
at either stage of the proceedings.
III. DISPOSITION
We affirm the judgment.

CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
GROBAN, J.
JENKINS, J.
O’ROURKE, J.*

_______________________
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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 PEOPLE v. HOLMES, MCCLAIN and NEWBORN
S058734

Concurring Opinion by Justice Kruger

The defendants in this case appeared without physical
restraints at the guilt phase of their joint trial. At the first
penalty phase, however, the trial court required all three
defendants to wear stun belts “based on some activity.” The
court then reimposed the stun belt order for the penalty retrial,
in apparent response to a verbal outburst made by one of the
defendants at the close of the first penalty trial. The majority
upholds the order as within the trial court’s discretion. Based
on the record before us, I cannot agree.
I.
A trial court, of necessity, has “broad power to maintain
courtroom security and orderly proceedings.” (People v. Hayes
(1999) 21 Cal.4th 1211, 1269.) But requiring a defendant to
wear physical restraints at trial can pose significant risks of
unfairness. For that reason, California law holds that “a
defendant cannot be subjected to physical restraints of any kind
in the courtroom while in the jury’s presence, unless there is a
showing of a manifest need for such restraints.” (People v.
Duran (1976) 16 Cal.3d 282, 290–291 (Duran).) The federal
Constitution similarly “forbids the use of visible shackles during
the penalty phase, as it forbids their use during the guilt phase,
unless that use is ‘justified by an essential state interest’ — such
as the interest in courtroom security — specific to the defendant
on trial.” (Deck v. Missouri (2005) 544 U.S. 622, 624.) In People

1
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

v. Mar (2002) 28 Cal.4th 1201, we held that the same standard
applies when a court requires the defendant to wear an
electronic stun belt, “ ‘even if this device is not visible to the
jury.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 870.)1
In determining whether there is a manifest need to
physically restrain a particular defendant, “ ‘ “the trial court
may ‘take into account the factors that courts have traditionally
relied on in gauging potential security problems and the risk of
escape at trial.’ ” ’ ” (People v. Covarrubias, supra, 1 Cal.5th at
p. 870.) A trial court may not impose restraints merely because
of the nature of a defendant’s charged crimes, even in capital
cases. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 389–390 [“facts that the defendant is an unsavory character
and charged with a violent crime are not sufficient to support a
finding of manifest need”]; People v. Hawkins (1995) 10 Cal.4th
920, 944 [the defendant’s “record of violence, or the fact that he
is a capital defendant, cannot alone justify his shackling”]; see
also Duran, supra, 16 Cal.3d at p. 293 [that the “defendant was
a state prison inmate who had been convicted of robbery and
was charged with a violent crime did not, without more, justify
the use of physical restraints”].) “ ‘The imposition of physical
restraints without evidence of violence, a threat of violence, or
other nonconforming conduct is an abuse of discretion.’ ”
(Covarrubias, at p. 871.) Finally, “ ‘[a]lthough the court need
not hold a formal hearing before imposing restraints, “the record

1
This case was tried before People v. Mar. But “[e]ven
though Mar was the first California opinion to hold Duran’s
manifest need standard applicable to stun belts, we have
applied the standard to cases tried before Mar was decided.”
(People v. Jackson (2014) 58 Cal.4th 724, 739.)

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

must show the court based its determination on facts, not rumor
and innuendo.” ’ ” (Ibid.)
The question now before us is whether the trial court made
the requisite individualized determination of need with respect
to each of the three defendants in this case, and whether those
determinations were based on substantial evidence in the
record. (People v. Gamache (2010) 48 Cal.4th 347, 368.) Our
task is complicated by the fact the trial court never made
express findings of manifest need, nor otherwise explained the
basis for its decision to impose restraints on each of the
defendants. The only indications of the court’s thinking in the
record are elliptical and not clearly rooted in security concerns.
After allowing the defendants to appear unrestrained at the
guilt phase, the trial court ordered them to wear stun belts at
the penalty phase “based on some activity.” The court did not
explain what the “activity” in question was. The court then
announced its intention to reimpose the order at the conclusion
of the first penalty trial, which had ended in a hung jury. When
the prosecutor declared he would retry the penalty phase,
defendant Newborn gave him the finger and cursed at him in
vulgar terms. In response, the court noted: “We will have to
probably use the restraints again.” The court reiterated its
intent in the following court session, when Newborn’s counsel
moved for severance from McClain because of admissions and
profanities during McClain’s guilt phase testimony. The trial
court responded: “And then they shouldn’t be saddled with your
client’s loudmouth remarks last week. They are all together.
They told the court this and the jury, they’re P-9’s, they’re damn
proud of it. They won’t be severed. . . . I am not mad at you. I
am not happy with their attitude. They are not going to run this

3
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

court. I am going to run this trial. Have you got the word? And
you will be belted.”
In the absence of any express findings or explanation for
the basis of the stun belt order, the majority does the only thing
it can do, which is to comb the record for facts that would
support an inference that the trial court made the necessary
determinations of manifest need. The majority ultimately finds
what it is looking for in Newborn’s vulgar statement to the
prosecutor and other similar instances of what it terms
“nonconforming behavior” by the other defendants. Holmes, the
majority emphasizes, had also reacted inappropriately at an
earlier stage of the proceedings, responding to the reading of the
guilty verdicts by saying, “ ‘Fuck you, you motherfuckers. P-9
rules.’ ” (Maj. opn., ante, at p. 111.) (The majority also suggests
that Holmes subjected the jurors to other “ad hominem” attacks
(id. at p. 113), but no other verbal outbursts by Holmes appear
on the record.2) And as for McClain, the majority says he had
“threatened a witness and made a lewd gesture toward the
jury.” (Ibid.) The lewd gesture is supported by the record, but
the witness-threatening is not.3 The record instead shows that

2
The confusion stems from a comment made by counsel
rather than anything Holmes said or did: When seeking
severance for purposes of the penalty retrial, one of the defense
lawyers referred to Holmes’s response to the guilty verdict as an
attack on jurors’ intelligence, values, and sexual perversion.
This was a florid description of Holmes’s guilty-verdict outburst,
not a reference to additional incidents.
3
The majority asserts that McClain said, “ ‘I’ll kill you’ ” to
a witness as he was leaving the stand. (Maj. opn., ante, at
p. 111.) McClain’s words to the witness do not appear on the
record. And while the witness accused McClain of threatening
him, standby counsel testified that McClain had instead called
the witness a “dick head.” The trial court ultimately made no

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

McClain had disrupted the guilt phase proceedings to accuse a
witness of lying, flipped off the jury when the guilty verdicts
were announced, and cursed at the prosecutor in a hearing
shortly after the first penalty phase ended in mistrial.
At bottom, with “ ‘ “rumor and innuendo” ’ ” stripped away
(People v. Covarrubias, supra, 1 Cal.5th at p. 871), what we have
is a series of seemingly isolated incidents in which one or
another defendant spoke out of turn in the courtroom, using
vulgar and highly inappropriate terms. The statements and
gestures were directed at other individuals in the courtroom, but
there is no indication in the record that the trial court regarded
the incidents as threatening. To the contrary, at one point the
trial court observed that the defendants’ behavior was not so
uncommon and the jurors did not appear shocked, having heard
other people use profanity on the stand. As for defendant
Holmes, the Attorney General defends the trial court’s decision
to admit a videotape of Holmes’s outburst as evidence against
all three defendants by vigorously denying that Holmes’s
statement to the jury was threatening; a viewing of the

finding that McClain threatened the witness, nor did it
otherwise indicate it regarded the incident as presenting a
security concern. Instead, the court explained to McClain:
“Listen, I am not going to chastise you. You bring things on
yourself sometimes because you don’t really understand the
proceedings. Anything you say to any witness can come back to
hurt you. . . . I know sometimes you just do it because you are
unsophisticated or some other reason, but you can’t do it. It will
come back.” In any event, the incident occurred during the
penalty retrial — well after the trial court decided to impose
restraints — and so could not have played any part in the trial
court’s determination of manifest need.

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 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

videotape, which is in the record before us, supports the
Attorney General’s characterization.
The law is clear that, at least standing alone, isolated
verbal outbursts — even “expletive-laden” ones (maj. opn., ante,
at p. 113) — do not establish manifest need to restrain
defendants by means of a device capable of delivering
“debilitating electric shock” (People v. Mar, supra, 28 Cal.4th at
p. 1204). As we said in Mar, “a stun belt may not properly be
used, over a defendant’s objection, to deter a defendant from
making verbal outbursts that may be detrimental to the
defendant’s own case.” (Id. at p. 1223, fn. 6.)
It is true, of course, that our cases have said that a
determination of manifest need for restraints can be based on a
showing of “ ‘violence, a threat of violence, or other
nonconforming conduct.’ ” (People v. Covarrubias, supra, 1
Cal.5th at p. 871, italics added.) The majority opinion places
considerable emphasis on that final phrase in upholding the
trial court’s order based on the defendants’ verbal misbehavior.
But the reference to “nonconforming conduct” in our cases is not
a catchall that sweeps in every instance of vocalized disrespect.
Rather, as our precedent makes clear, the type of nonconforming
conduct sufficient to justify restraint must be the sort of conduct
indicative of a current risk of escape or physical danger or
behavior that “ ‘would disrupt the judicial process if
unrestrained.’ ” (People v. Cox (1991) 53 Cal.3d 618, 651.)
To appreciate the difference between the “nonconforming
conduct” in this record and the type of showing our precedent
requires, consider prior cases. We have upheld trial courts’
restraint orders where there is “evidence that the defendant has
threatened jail deputies, possessed weapons in custody,

6
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

threatened or assaulted other inmates, and/or engaged in
violent outbursts in court.” (People v. Lewis and Oliver (2006)
39 Cal.4th 970, 1031; see also People v. Williams (2015) 61
Cal.4th 1244, 1259 [same]; People v. Young (2019) 7 Cal.5th 905,
934 [same].) We have also pointed to cases involving escape
efforts and violent threats. (People v. Mar, supra, 28 Cal.4th at
pp. 1216–1217.) By contrast, we have found manifest need for
restraints lacking when circumstances involved a significant
“undercurrent of tension and charged emotion on all sides,” but
not “a single substantiation of violence or the threat of violence
on the part of the accused.” (People v. Cox, supra, 53 Cal.3d at
p. 652.) In Mar, we similarly determined that the trial court’s
concern that defendant’s “ ‘strong emotions’ ” might cause him
to get “ ‘crossways with somebody in the security detail,’ ”
without more, was insufficient to establish manifest need for a
stun belt. (Mar, at pp. 1211, 1222.)
Again, though here the defendants’ individual remarks
were vulgar and inappropriate, the record does not establish
that these isolated acts either “posed the type of serious security
threat at trial that would justify the imposition of restraints” or
that “the trial court actually determined” they did. (People v.
Mar, supra, 28 Cal.4th at p. 1220; see People v. Soukomlane
(2008) 162 Cal.App.4th 214, 232.) To the extent the trial court
revealed its reasons on the record, its concern seemed to be
primarily with the impropriety of the defendants’ various
inappropriate remarks, rather than with any security risks they
posed. In the end, nothing in the court’s comments “indicates it
was aware that the procedural and substantive requirements
established in Duran governed its consideration and
determination” to use stun belts. (Mar, at p. 1222.)

7
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

Ultimately the trial court’s imposition of the stun belt on
defendant McClain may have been justified for a reason the
majority notes but does not rely on: The court found that before
the guilt phase, McClain had attempted to attack an inmate
with a shank. (Maj. opn., ante, at p. 111.) Apparently, the trial
court did not think the incident established a need to restrain
McClain at the guilt phase trial, but it may well be that this
violent episode played a role in the court’s decision to restrain
McClain at the penalty phase. The matter is unclear on this
record. And the record contains no similar evidence of violence
or threats of violence by Newborn or Holmes.
The majority opinion suggests the trial court was entitled
to consider the defendants’ verbal outbursts in view of the
“collective risk” posed by “volatile defendants” associated with a
violent gang and convicted of violent crimes. (Maj. opn., ante, at
p. 114.) The majority concludes that “[u]nder these
circumstances there may be well-founded concern that
disruptive conduct by one will spur an outburst and escalation
by the others.” (Ibid.) Perhaps. But if, after defendants
appeared unrestrained at the guilt phase, the trial court
developed new concerns about their “volatility” or other
courtroom dynamics at the penalty phase, the court should have
made those concerns known on the record. The trial judge did
comment on the defendants’ attitudes and what he referred to
as their “loudmouth” remarks. The trial court clearly regarded
the defendants as posing a threat to the dignity of the
courtroom. But it did not make a record, specific to each
defendant, regarding any threat they posed to its security. (See
Duran, supra, 16 Cal.3d at pp. 291, 293; People v. Mar, supra,
28 Cal.4th at p. 1220.) On the record we have, I would not
uphold the trial court’s stun belt order.

8
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

II.
Whether the trial court adequately justified its use of
restraints is not the end of the analysis; reversal is required only
if the defendants were prejudiced by the error. (People v.
Jackson, supra, 58 Cal.4th at p. 744.) Our cases have held that
the unjustified use of restraints is harmless when the jury is not
aware of them and there is no indication the restraint hampered
the defense in any other way. (Id. at p. 740.) Here, there is no
claim that the stun belts were ever visible to the jury or that
they hampered the defense. But though the jury could not see
the stun belts, it was made aware of them.
A bailiff testifying as a witness described a threat made by
defendant McClain while the bailiff was placing the stun belts
on the defendants. The witness began his testimony by
explaining that “[e]very morning as we come in, we put an
electronic device on each one of the defendants.” Counsel for
Holmes interrupted, asking the court to admonish the jury that
“they should not use the electronic device against any of the
clients; it is just basically a procedure the sheriffs use in these
types of cases.” In response, the trial court told the jury: “The
court makes a decision, based on things the court knows,
whether or not to wear this device. It is a security device to
assure tranquility in the court, security for everyone. It does not
mean that they are guilty or not guilty.” Resuming his
questioning, the prosecutor said, “So you put the security device
on the defendants, right? . . . Ones who have been convicted of
murder?” The bailiff then described putting the security devices
on Holmes, Newborn, and McClain.
The jury would later hear more from the trial court on the
subject of stun belts during an exchange with defendant

9
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

McClain. During his closing argument, McClain stated that his
argument would be more “boisterous” “if I didn’t have this belt
on.” The court remarked that “you are wearing a belt because
you have acted up in this courtroom. So don’t tell this jury
without that belt what you might do.”
It is true, as the majority says (maj. opn., ante, at p. 115)
that the jury was not told, in so many words, that the defendants
were wearing electronic stun belts. But the jurors certainly
might have surmised something of the sort from the witness’s
reference to “an electronic device” the bailiffs placed on the
defendants each day. The trial court’s limiting instruction then
had the perhaps unintentional effect of adding to the jury’s
awareness of the device. The standard admonishment directs
jurors “ ‘not speculate as to why restraints have been used’ ” and
that restraints may not be considered “ ‘for any purpose.’ ”
(People v. Lightsey (2012) 54 Cal.4th 668, 721, fn. 24 [describing
CALJIC No. 1.04].) The instruction the trial court gave instead
told the jurors that the devices defendants wore were for
courtroom security and suggested the court knew of undisclosed
reasons warranting their use, as opposed to expressly
discouraging speculation about what those reasons were. 4 The

4
The majority faults defendants for failing to request a
different instruction. (Maj. opn., ante, at p. 115.) But the
defense did, in fact, request a different instruction from the one
the trial court gave. Perhaps a further request might have
prompted the trial court to clarify the instruction by noting that
the devices were not to be used for any purpose, as opposed to
for purposes of guilt — which was no longer an issue at the
penalty phase. But it is not clear what additional comments
could have dispelled the impression left by the trial court’s
description of the devices or their purpose. Defendants were
under no obligation to ask the trial court to put the cat back in
the bag. (See People v. Perez (2020) 9 Cal.5th 1, 7–8 [parties are

10
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

trial court would later again allude to those reasons when it told
McClain “you are wearing a belt because you acted up in this
courtroom.”
Ultimately, however, under our precedent, I do not think
these references to the stun belts constitute a basis for reversing
the judgment. (See People v. Jackson, supra, 58 Cal.4th at
pp. 740–741; accord, People v. Bryant, Smith and Wheeler,
supra, 60 Cal.4th at pp. 472–473 (conc. opn. of Liu, J.)
[criticizing People v. Jackson, but recognizing it as binding
precedent].) Even when a trial court fails to adequately justify
the use of physical restraints, we have said that a juror’s brief
viewing of restraints generally does not give rise to prejudicial
error. (People v. Ervine (2009) 47 Cal.4th 745, 774 [unjustified
shackling harmless even if a juror glimpsed the restraint during
voir dire]; Duran, supra, 16 Cal.3d at p. 287, fn. 2 [seeing the
defendant in shackles “for only a brief period either inside or
outside the courtroom” generally does not constitute prejudicial
error].) Although there are limits to what jury instructions can
do in this context, we have also generally held that jury
instructions can at least temper any prejudice that might
otherwise result from awareness of a defendant’s physical
restraints. (See People v. Pride (1992) 3 Cal.4th 195, 253–254
[assuming the jury was able to follow a penalty phase
instruction to disregard visible restraints]; but cf. People v.
McDaniel (2008) 159 Cal.App.4th 736, 747 & fn. 9 [a blanket
presumption that an admonition renders harmless the

excused from raising issues that would have been futile]; People
v. Seumanu (2015) 61 Cal.4th 1293, 1328 [failure to request
admonition does not forfeit an issue when it would not have
cured the harm caused].)

11
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

unjustified use of restraints would undermine the trial court’s
obligation to find the restraints are necessary].)
Again, there is no indication the jury in this case ever saw
the restraints. In visible shackling cases, we are often
concerned with the “visual, psychological, and emotional
response” a juror might have to seeing a defendant “restrained
and differentiated from everyone else.” (People v. McDaniel,
supra, 159 Cal.App.4th at p. 746; see Deck v. Missouri, supra,
544 U.S. at p. 630.) Here, that particular concern was not
present; the stun belts had no visual impact on the jurors, even
in passing. The jury instead heard about the stun belts in
passing, during brief and nonspecific exchanges in a penalty
retrial that spanned a month and involved testimony from
nearly 70 witnesses. (Cf. Stephenson v. Neal (7th Cir. 2017) 865
F.3d 956, 959 [finding the unjustified use of a visible stun belt
prejudicial when the brevity of the penalty phase may have
increased the negative impact of the visible restraint].) Further,
the trial court did give a limiting instruction to the jury, albeit
a flawed one. (Cf. Duran, supra, 16 Cal.3d at p. 296 [finding the
unjustified and unadmonished use of restraints prejudicial
when considered cumulatively with other trial errors].)
McClain argues that the trial court’s comment on his stun
belt during his closing argument added to the prejudice he
suffered. It is true the court’s remarks called additional
attention to the restraint. But then again, so did McClain’s
comments, to which the court was responding. The prosecutor
made no mention of the restraint, and the issue arose only
briefly. Under our cases, reversal is not warranted. 5

5
Pointing to his remark at trial that his closing argument
would have been more “boisterous” without the stun belt,

12
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

III.
I raise one final point about the trial court’s use of physical
restraints: The court’s failure to consider manifest need did not
appear to be an isolated event. McClain claims the trial judge
erred when he required McClain’s witness, Clarence Jones, to
appear in court wearing visible restraints. The Attorney
General acknowledges that the “limitation on physical
restraints applies to defense witnesses as well as defendants”
(People v. Allen (1986) 42 Cal.3d 1222, 1264–1265), but asserts
that McClain forfeited this argument because he did not object
to Jones’s restraints at trial. The majority agrees. Respectfully,
I do not.
McClain presented testimony from Jones, a fellow inmate,
to refute evidence about McClain’s attempt to attack an inmate
in the jail. During cross-examination, the prosecutor drew
attention to the fact that Jones had been shackled in a previous
criminal trial because of his outbursts towards the court and
deputies. Immediately after the prosecutor’s questioning,
McClain stated on redirect: “I mean it’s obvious the way they
bring you in here with all those chains, they are trying to paint

McClain also suggests it is reasonable to assume the stun belt
impaired his ability to think clearly and maintain a positive
demeanor before the jury. Rather than assume impairment,
however, our cases have required some affirmative indication in
the record that a stun belt had an adverse impact on the defense.
(People v. Jackson, supra, 58 Cal.4th at p. 740; accord, People v.
Mar, supra, 28 Cal.4th at p. 1225.) Aside from McClain’s
remark about being more “boisterous,” the record in this case
contains no indication that the stun belt had any impact on
McClain’s ability to effectively question witnesses, make
objections, or present his closing argument to the jury.

13
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

a picture you are some dangerous dude?” Jones answered:
“Exactly. That is what I said downstairs when I come through
here. From my understanding, as far as this black thing around
here, this is a zapper, and this is not supposed to be exposed to
the jury.” McClain observed that the restraints on Jones were
meant to reflect badly on McClain. The trial court later
admonished the jury that the fact that Jones was shackled and
brought in by deputies “has no reflection on Mr. McClain. You
called him as your witness. You take your witnesses as they are,
not what they are, not how they are dressed.”
The majority finds McClain forfeited his claim of error
because he did not object to Jones’s restraints at trial. But there
is no indication in the record that McClain ever had an
opportunity to do so. It is unclear whether McClain was told
Jones would be required to wear restraints before Jones
appeared in the courtroom. And once Jones was on the stand,
McClain did object in a manner, remarking that the restraints
reflected poorly on him.
As for the merits, the trial judge was obligated to make a
finding of manifest need for Jones’s restraints. (Duran, supra,
16 Cal.3d at p. 291; People v. Allen, supra, 42 Cal.3d at
pp. 1264–1265 [recognizing that the rules established by Duran
apply to defense witnesses].) Much as in the case of defendants
themselves, there is nothing in the record to indicate that the
trial court made the necessary finding.
The majority concludes the record lacks evidence that
Jones’s restraints were visible, and suggests it was McClain who
brought the restraints to the jury’s attention, making revelation
of the restraints invited error. I read the record differently:
Although there was a “ ‘pause’ ” in the proceedings before Jones

14
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Kruger, J., concurring

entered the courtroom (maj. opn., ante, at p. 139), the bailiffs
had stated there was no need to take a break before bringing
Jones in to testify and the jury was not dismissed before Jones
was escorted into the courtroom in shackles and a stun belt.
McClain’s comment that Jones was brought to the courtroom “in
all those chains,” and Jones’s comment that he thought the jury
was not supposed to see the stun belt, suggest that the jury did
indeed see the restraints.
The trial court’s errors with respect to Jones were of a
piece with its errors respecting the restraints on defendants
Holmes, McClain, and Newborn. In each case, the law required
a finding of manifest need for restraints based on record
evidence, and in each case the trial court ordered the restraints
without either making explicit findings or making implicit
findings that are discernable on this record. While the errors
may not have been prejudicial under our precedent, I would
forthrightly acknowledge that the trial court did not make an
adequate record to justify the use of restraints at the penalty
phase of this trial. Thus, while I join the majority opinion in
other respects, on the issue of restraints I concur in the
judgment only.

KRUGER, J.

15
 PEOPLE v. HOLMES, MCCLAIN AND NEWBORN
S058734

Dissenting Opinion by Justice Liu

The court today affirms a judgment of death for three
Black men that followed a trial in which the prosecutor used half
of his peremptory strikes to remove Black women from the jury
box. At the time of the defense’s motion objecting to the
prosecutor’s strikes, the prosecutor had used six of twelve
peremptory challenges to dismiss two-thirds of the Black women
called into the box, eliminating them at a rate nearly twice their
representation among jurors who had been questioned. These
figures “are important and reflect an obvious disparity.” (Maj.
opn., ante, at p. 45.) Yet today’s opinion holds that defendants
failed to establish a prima facie case of discrimination in light of
the fact that the seated jury included four Black women.
We have said that “ ‘acceptance of one or more black jurors
by the prosecution’ ” may “ ‘help lessen the strength of any
inference of discrimination that the pattern of the prosecutor’s
strikes might otherwise imply.’ ” (People v. Johnson (2019) 8
Cal.5th 475, 508.) But the “ ‘low threshold’ showing required for
Batson’s first step . . . is satisfied simply by evidence sufficient
to permit us to draw an inference that discrimination may have
occurred.” (People v. Battle (2021) 11 Cal.5th 749, 773 (Battle).)
Here, the jury’s final composition reflected the
prosecutor’s pattern of strikes and was reached only after the
trial court warned counsel about the appearance of impropriety
in their strikes. Considered in context, the final composition

1
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

does little to lessen the inference that the prosecution sought to
limit the number of Black women — a group well known to be a
frequent target of prosecutors’ peremptory strikes in capital jury
selection. Defendants have met the low bar for establishing a
prima facie case under Batson v. Kentucky (1986) 476 U.S. 79
(Batson). In reaching a contrary judgment, today’s opinion
weakens the role of appellate review in rooting out improper
discrimination in jury selection.
Today’s opinion also holds that the trial court did not err
in ordering each defendant to wear a stun belt — “a device that
. . . delivers an eight-second-long, 50,000-volt, debilitating
electric shock when activated by a transmitter controlled by a
court security officer.” (People v. Mar (2002) 28 Cal.4th 1201,
1204 (Mar).) I agree with Justice Kruger that no “ ‘manifest
need’ ” (id. at p. 1217, italics omitted) appears in this record for
ordering a shock device whose activation “ ‘causes temporary
debilitating pain’ ” and “ ‘may also cause immediate and
uncontrolled defecation and urination,’ ” “ ‘may leave welts on
the wearer’s skin requiring as long as six months to heal,’ ” and
“ ‘may cause some wearers to suffer heartbeat irregularities or
seizures’ ” (id. at p. 1215). I do not agree, however, that this
unlawful use of the stun belts was harmless beyond a reasonable
doubt at the penalty retrial.
I respectfully dissent.
I.
During jury selection in 1995, the prosecutor exercised its
first twelve peremptory challenges to dismiss six Black women,
three White women, one Filipino man, one Hispanic man, and
one Hawaiian woman. Defense counsel raised an objection
under Batson and People v. Wheeler (1978) 22 Cal.3d 258, noting

2
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

that the prosecution had struck six Black women. The trial
court asked the prosecutor if he wanted to respond. The
prosecutor asked whether the trial court would find a prima
facie case. When the court said it would not, the prosecutor
declined to state his reasons for the strikes.
After the court’s ruling, the prosecutor used four more
peremptory challenges, striking one Hispanic man, one
Hispanic woman, and two more Black women. The trial judge
then suggested he would excuse another prospective juror for
cause based on her views about the death penalty and called
counsel into chambers. He explained why he would prefer that
defense counsel not proceed with additional questions of the
prospective juror: “I think the court has asked enough
questions. [Defense counsel] wants to ask questions. I don’t
think it is appropriate. I have been through this so many times
and you have, too. . . . You can ask questions, but I can feel her
heart and I don’t think she wants to [impose the death penalty].
It doesn’t mean she couldn’t or wouldn’t, but she is saying in
effect that she really couldn’t do that.” Defense counsel agreed
to submit on the issue.
The judge continued: “On that same note, the defense has
accepted several, three times. There is seven Black people left
on the jury. We have three defendants, Black, on trial for their
life. The defendants have taken off some White people. I watch
the people’s reaction in the audience. You do not see this. In
my court I want the appearance of fairness. I want to put you
on notice: Be very careful, both of you. Be very careful. I had
the opportunity one time sitting here and there were three
Justices that came down to visit me and they came in chambers
and commented on that. This is not apparent, but you have to
be very careful. The appearance of justice is as important as

3
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

justice. I think your peremptories were proper, but you are
giving the appearance. You are down to the short straws here.
I think most of those people had some problems, people in jail
and things. But for justice for everyone I want you to think
about what we are doing here. I am not admonishing you; I am
just saying I am very sensitive about that on both sides.”
Once back in session, the court excused the prospective
juror for cause. Defense counsel struck an additional juror, and
then all counsel accepted the jury comprised of two White men,
three White women, one Hispanic man, one Hispanic woman,
one Black man, and four Black women.
II.
To establish a prima facie case of a Batson violation, the
moving party must point to sufficient facts and circumstances to
“raise an inference” that the prosecutor exercised peremptory
challenges to exclude venirepersons on an impermissible basis.
(Batson, supra, 476 U.S. at p. 96.) This is a “low threshold.”
(People v. Scott (2015) 61 Cal.4th 363, 384.) An inference is
simply “a logical conclusion based on a set of facts.” (People v.
Lancaster (2007) 41 Cal.4th 50, 74.) We review the record
independently “where, as here, the trial predated Johnson [v.
California (2005) 545 U.S. 162] and it is not clear from the
record whether the trial court analyzed the Batson/Wheeler
motion with this low threshold in mind.” (Scott, at p. 384.)
“[A] ‘pattern’ of strikes” against a group may “give rise to
an inference of discrimination.” (Batson, supra, 476 U.S. at
p. 97.) The moving party “may show that his opponent has
struck most or all of the members of the identified group from
the venire, or has used a disproportionate number of his
peremptories against the group.” (People v. Bell (2007) 40

4
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

Cal.4th 582, 597 (Bell), disapproved on another ground in People
v. Sánchez (2016) 63 Cal.4th 665, 686, fn. 13.) At the time of the
defense’s motion, the prosecutor had eliminated two-thirds of
the Black women — six out of nine — seated in the box and had
used half of his peremptories — six out of twelve — to strike
Black women.
An elimination rate of two-thirds “is often sufficient on its
own to make a prima facie case at Step One.” (Shirley v. Yates
(9th Cir. 2015) 807 F.3d 1090, 1101 [defendant raised an
inference of discrimination “more than sufficient to meet his
‘minimal’ burden” where two-thirds of the Black venirepersons
not removed for cause were struck by the prosecutor].) And it is
higher than rates that courts have found sufficient to support
an inference of discrimination. (See, e.g., Fernandez v. Roe (9th
Cir. 2002) 286 F.3d 1073, 1078 (Fernandez) [57 percent, noting
that “[i]n a number of other cases, with less striking disparities,
we have assumed the existence of a prima facie case”]; Turner v.
Marshall (9th Cir. 1995) 63 F.3d 807, 812 (Turner) [56 percent],
overruled on other grounds in Tolbert v. Page (9th Cir. 1999) 182
F.3d 677, 685 (en banc).)
The prosecutor’s use of 50 percent of his strikes against
Black women is likewise in the range that supports a prima facie
case. (See, e.g., Price v. Cain (5th Cir. 2009) 560 F.3d 284, 287
[defendant carried his “light burden” where prosecutor used six
of twelve peremptory challenges to strike Black prospective
jurors, defendant was Black, and the resulting jury was all
White]; Fernandez, supra, 286 F.3d at p. 1078 [29 percent strike
rate with 57 percent elimination rate was “enough,” “standing
alone, . . . to raise an inference of racial discrimination”].) And
it is significantly higher than rates we have found insufficient
to raise an inference of discrimination in similar cases. (See,

5
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

e.g., Battle, supra, 11 Cal.5th at p. 775 [18 percent]; People v.
Clark (2011) 52 Cal.4th 856, 904–905 [20 percent]; People v.
Welch (1999) 20 Cal.4th 701, 745 [27 percent].) It is true that
this court in People v. Rhoades (2019) 8 Cal.5th 393 (Rhoades)
found no prima facie case where the prosecutor used four out of
eight strikes against Black women. But the defendant in
Rhoades was White, and the court said the record disclosed
“readily apparent, race-neutral grounds” for the prosecutor’s
challenges. (Id. at p. 430.) Here, all three defendants are Black,
and the record does not disclose readily apparent, race-neutral
reasons to excuse the prospective jurors at issue.
Moreover, the statistical disparity remains stark when we
“compare[] the proportion of a party’s peremptory challenges
used against a group to the group’s proportion in the pool of
jurors subject to peremptory challenge.” (Bell, supra, 40 Cal.4th
at p. 598, fn. 4.) At the time of the motion, Black women were
26 percent of the jurors (nine out of 34) subject to peremptory
challenges, yet the prosecutor had used half of his challenges to
strike them. “[A] challenge rate nearly twice the [representation
in] the venire strongly supports a prima facie case under
Batson.” (U. S. v. Alvarado (2d Cir. 1991) 923 F.2d 253, 256.)
In sum, at the time of the Batson motion, the prosecutor’s
strikes of six Black women eliminated two-thirds of the Black
women seated in the box, and they comprised half of the
prosecutor’s total strikes, a rate nearly twice the proportion of
Black women among jurors subject to challenge. These facts,
“standing alone, are enough to raise an inference of racial
discrimination.” (Fernandez, supra, 286 F.3d at p. 1078; see
ibid. [finding prima facie case where prosecutor used four of
seven strikes to eliminate four of fourteen Hispanic jurors,
where Hispanic jurors comprised 12 percent of the jurors subject

6
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

to strike]; see People v. Sánchez (2016) 63 Cal.4th 411, 439
[“[c]onsidered alone,” prosecutor’s use of four of ten challenges
to strike four of six Hispanic jurors, where Hispanic jurors
comprised 19 percent of the jurors subject to strike, may
“suggest a discriminatory purpose”].)
On appellate review, “[p]ostruling developments can
provide a basis for denying a Batson claim . . . if the totality of
the record, including such developments, permits no reasonable
inference that the prosecutor acted with discriminatory intent.”
(People v. Reed (2018) 4 Cal.5th 989, 1022 (Reed) (dis. opn. of Liu,
J.).) None of the surrounding circumstances here refute the
inference arising from these figures. After the trial court found
no prima facie case, the prosecutor used two of his next four
peremptory challenges to remove Black women from the jury.
Thus, the rate at which the prosecutor used strikes against
Black women did not change after the Batson/Wheeler motion.
The prosecutor’s pattern of strikes also continued during the
selection of alternate jurors, where he used three of seven
peremptories to remove three of four Black women subject to
challenge.
Over the entire jury selection process, the prosecutor
struck 11 of the 16 Black women he could have struck, nearly 70
percent. This rate of strikes against Black women was nearly
three times the proportion of Black women among jurors subject
to challenge (16 out of 64 total jurors, or 25 percent). This is far
more pronounced than what we have found acceptable in the
past. (See Reed, supra, 4 Cal.5th at p. 1000 [finding no prima facie
case where prosecutor struck Black jurors at a rate of 44 percent,
“barely” more than their 34 percent representation in the venire];
People v. Thomas (2012) 53 Cal.4th 771, 796 (Thomas)
[prosecutor’s use of 37 percent of challenges against African-

7
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

Americans who comprised 26 percent of jurors called into the box
was “not significant enough, in itself, to suggest discrimination”].)
We have recognized several other factors as “ ‘especially
relevant’ ” to determining “whether the record supports an
inference the prosecution excused one or more of the African-
American prospective jurors because of their race.” (Rhoades,
supra, 8 Cal.5th at p. 429.) Among these is “ ‘whether the
defendant is a member of [the identified] group.’ ” (Ibid.) The
court says this “ ‘especially relevant’ ” factor is not implicated in
this case because all three defendants are Black men and the
defense’s Batson challenge concerned the prosecutor’s strikes of
Black women. (Maj. opn., ante, at p. 43, fn. 18.) But it blinks
reality to ignore the “ ‘ “concurrence of racial and sexual
identity” ’ ” (People v. Motton (1985) 39 Cal.3d 596, 606 (Motton))
and the improper stereotypes that might cause a prosecutor to
remove Black female jurors in a case involving Black male
defendants. (See, e.g., People v. Triplett (2020) 48 Cal.App.5th
655, 683 (dis. stmt. of Liu, J.) [prosecutor struck a Black woman
who, when asked if she knew anyone who had been treated
badly by the police, said, “ ‘A Black woman in L.A. with young
Black brothers, I have been harassed many times’ ” by police,
but then “repeatedly and unequivocally” indicated that “she
could be a fair juror and impartially consider police testimony”].)
Indeed, “[r]acial identity between the defendant and the
excused person might in some cases be the explanation for the
prosecution’s adoption of [a] forbidden stereotype.” (Powers v.
Ohio (1991) 499 U.S. 400, 416 (Powers).) Because “race
prejudice stems from various causes and may manifest itself in
different forms” (ibid.), the race of a defendant does not become
irrelevant because an excused juror of the same race belongs to
a different gender. As relevant here, “[t]he most commonly held

8
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

stereotype about African-American women in the context of jury
selection is that they will not convict a Black male defendant
because they will emotionally respond to him as a son or
husband. . . . [¶] In the context of capital trials, this stereotype
translates into the assumption that African-American women
will not impose the death penalty against an African-American
male defendant.” (Brief of Amici Curiae National Congress of
Black Women and Black Women Lawyers Association of Los
Angeles, Inc., Williams v. California, No. 13-494, pp. 10–11; see
Babcock, A Place in the Palladium: Women’s Rights and Jury
Service (1992) 61 U.Cin. L.Rev. 1139, 1147.)
Empirical studies demonstrate that Black women are the
frequent target of prosecutors’ peremptory challenges in capital
cases and are struck disproportionately compared to other
groups. (See, e.g., Baldus et al., The Use of Peremptory
Challenges in Capital Murder Trials: A Legal and Empirical
Analysis (2001) 3 U.Pa. J. Const. L. 3, 123 [young Black women
experienced the highest strike rate by the prosecution followed
by young Black men and Black middle-aged women]; Wright et
al., The Jury Sunshine Project: Jury Selection Data as a Political
Issue (2018) 4 U.Ill. L.Rev. 1407, 1427 [prosecutors removed
Black women at about double the rate they removed White
prospective jurors]; Eisenberg et al., If It Walks Like Systematic
Exclusion and Quacks Like Systematic Exclusion: Follow-Up on
Removal of Women and African-Americans in Jury Selection in
South Carolina Capital Cases, 1997–2014 (2017) 68 S.C. L.Rev.
373, 389 [same]; see also People v. Harris (2013) 57 Cal.4th 804,
887–889 (conc. opn. of Liu, J.) [discussing additional studies and
experimental research on the disparate strikes of Black jurors].)
These findings are consistent with how often this court
and other courts have confronted objections to the strikes of

9
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

Black women. In some cases, the record reflects “precisely the
sort of reliance on racial and gender stereotypes that Batson is
intended to eliminate.” (People v. Williams (2013) 56 Cal.4th
630, 717 (dis. opn. of Liu, J.); see id. at pp. 651–652 (maj. opn.)
[prosecutor struck five Black women; trial judge said “ ‘Black
women are very reluctant to impose the death penalty’ ”]; see,
e.g., Battle, supra, 11 Cal.5th at pp. 770, 774 [prosecutor struck
two Black women in case involving Black male defendant];
People v. Johnson, supra, 8 Cal.5th at pp. 529, 531 (dis. opn. of
Liu, J.) [prosecutor struck three Black women with “diverse
backgrounds, occupations, and family circumstances” in case
involving Black male defendant]; Rhoades, 8 Cal.5th at p. 424
[prosecutor excused all four Black women to reach the box];
People v. Cunningham (2015) 61 Cal.4th 609, 665 [prosecutor
used three of eight challenges to strike Black women]; People v.
Chism (2014) 58 Cal.4th 1266, 1338, 1344 (dis. opn. of Liu, J.)
[prosecutor struck Black woman where first penalty phase jury
of Black male defendant’s trial hung because two Black female
jurors refused to vote for death]; People v. Elliott (2012) 53
Cal.4th 535, 560–563 [prosecutor struck Black woman because
she was “ ‘weak on death’ ” but did not engage her in same voir
dire as non-Black prospective jurors raising similar concerns in
their questionnaires]; People v. Manibusan (2013) 58 Cal.4th 40,
81 [prosecutor used three of eight peremptories to remove Black
women]; People v. Mai (2013) 57 Cal.4th 986, 1050–1053
[prosecutor struck three Black women relying in part on
questionable characterizations of their death penalty views];
Thomas, supra, 53 Cal.4th at pp. 794–796 [prosecutor struck six
Black women in case with Black defendant where there was “no
obvious reason” to strike all of the challenged Black women];
People v. Taylor (2010) 48 Cal.4th 574, 612, 616 [prosecutor

10
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

excused Black woman for, among other things, being
“undecided” about the death penalty where seated juror
indicated likewise]; People v. Mills (2010) 48 Cal.4th 158, 177–
185 [prosecutor struck at least five Black women who entered
the box]; People v. Stanley (2006) 39 Cal.4th 913, 937–943
[prosecutor struck five Black women based on their “ ‘sympathy
for the defendant’ ”; trial judge said “[m]ost of these women that
you excused by their answers and by the way they talked, it’s
arguable that they were sympathetic to the defendant, the
defendant being black”]; Bell, supra, 40 Cal.4th at p. 595
[prosecutor struck two of three Black women in case with Black
male defendant]; People v. Young (2005) 34 Cal.4th 1149, 1171
[prosecutor struck all three Black women from the panel];
People v. Cleveland (2004) 32 Cal.4th 704, 733–734 [prosecutor
struck four Black women in case with Black male codefendants];
People v. Boyette (2002) 29 Cal.4th 381, 420–423 [prosecutor
struck four Black women over concerns about their willingness
to impose the death penalty where three indicated their
willingness to do so]; Wilson v. Beard (3d Cir. 2005) 426 F.3d
653, 657, 669 [prosecutor struck at least six Black women and
urged in jury selection training tape that young Black women
“ ‘are very bad’ ” and to avoid older Black women “ ‘when you
have [] a black defendant who’s a young boy and they can
identify as his . . . motherly type thing’ ”]; see also J.E.B. v.
Alabama ex rel. T.B. (1994) 511 U.S. 127, 145, fn. 18 (J.E.B.)
[“the majority of the lower court decisions extending Batson to
gender involve the use of peremptory challenges to remove
minority women”].)
To overlook the racial identity of the challenged jurors and
defendants in these circumstances would be to ignore persistent
stereotypes and their impermissible effects on jury selection. In

11
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

this case, as in others, the disproportionate challenge of Black
women plausibly raises a concern that these jurors were
removed based on “assumptions . . . which arise solely from
the[ir] race,” gender, or intersection of these identities. (Batson,
supra, 476 U.S. at p. 98; see J.E.B., supra, 511 U.S. at pp. 141–
142; Motton, supra, 39 Cal.3d at p. 606.) The shared “[r]acial
identity between the defendant[s] and the excused person[s] . . .
may provide one of the easier cases to establish both a prima
facie case and a conclusive showing that wrongful
discrimination has occurred.” (Powers, supra, 499 U.S. at
p. 416.)
In reaching a contrary conclusion, today’s opinion relies on
the final composition of the jury, which included four Black
women, and the fact that the prosecutor had sufficient
peremptory challenges remaining to strike them at the time he
accepted the jury. But these circumstances cannot bear the
weight the court places on them.
Crucially, the prosecutor accepted the jury’s composition
only after the trial court had admonished counsel to be attentive
to “the appearance of fairness” and “[t]he appearance of justice”
in the exercise of their peremptory strikes. Up to that point, the
prosecutor had continued to use half of his peremptory
strikes — six out of twelve at the time of the Batson motion, then
two out of four until the jury was accepted — to dismiss Black
women. Indeed, it was only after the prosecutor struck six Black
women, after the defense made a Batson/Wheeler motion, after
the prosecutor declined to state his reasons for his strikes, after
the prosecutor struck two additional Black women, after the
defense accepted the jury three times, and after the court
admonished counsel about the appearance of justice that the
prosecutor accepted the jury as seated. In these circumstances,

12
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

the fact that the prosecutor could have removed even more Black
women from the jury, in the face of the trial court’s pointed
admonition, does little to lessen the inference of discrimination
arising from the pattern of strikes.
Today’s opinion also notes that the prosecution
“repeatedly excused jurors who were not members of the
identified group rather than excusing a number of African-
American women then in the box.” (Maj. opn., ante, at p. 48.)
But it is only in the most egregious, indiscreet, or oddly drawn
cases that a prosecutor would use peremptory challenges to
exclude only members of an identified group. Courts routinely
find a prima facie case where the prosecutor had sufficient
challenges remaining to strike seated jurors of the same group
or struck members of other groups in addition to the challenged
group. (See, e.g., Turner, supra, 63 F.3d at pp. 812–813
[collecting cases where the court found an inference of
discrimination where “the prosecution struck some, but not all,
of the minority venirepersons”].)
Finally, we have said “an appellate court may take into
account ‘nondiscriminatory reasons for a peremptory challenge
that are apparent from and “clearly established” in the record
[citations] and that necessarily dispel any inference of bias.’ ”
(Rhoades, supra, 8 Cal.5th at p. 431; see ibid. [“when the record
of a prospective juror’s voir dire or questionnaire on its face
reveals a race-neutral characteristic that any reasonable
prosecutor trying the case would logically avoid in a juror, the
inference that the prosecutor was motivated by racial
discrimination loses force”].) Today’s opinion identifies no such
reasons, and I see none.

13
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

In concluding that defendants have made a prima facie
case of discrimination, I express no view on whether they would
have ultimately shown by a preponderance of the evidence that
the prosecutor improperly dismissed one or more Black female
jurors. The prosecutor may well have had race-neutral reasons
for each strike, but we will never know. Instead, we are left with
“uncertainty” where “a direct answer [could have been] obtained
by asking a simple question.” (Johnson v. California, supra, 545
U.S. at p. 172.) In this posture, the only inquiry before us is
whether “an inference of discrimination” arises from the totality
of circumstances in this case. (Batson, supra, 476 U.S. at p. 97.)
This “ ‘low threshold’ ” is easily met here; the evidence is more
than “sufficient to permit us to draw an inference that
discrimination may have occurred.” (Battle, supra, 11 Cal.5th
at p. 773.)
“[I]t has been more than 30 years since this court has
found any type of Batson error involving the removal of a Black
juror. (See People v. Snow (1987) 44 Cal.3d 216.) This is despite
the fact that ‘[t]he high court’s opinion [in Batson] responded
specifically to the pernicious history of African Americans being
excluded from jury service, calling such exclusion “a primary
example of the evil the Fourteenth Amendment was designed to
cure.” ’ ” (People v. Johnson, supra, 8 Cal.5th at p. 534 (dis. opn.
of Liu, J.).) Today’s decision extends this improbable streak and
regrettably may feed the perception — held by two of the Black
women jurors whom the prosecutor struck and by no fewer than
six seated jurors in this case — that the death penalty is
imposed randomly or disproportionately upon persons with
lesser means. The incongruity between our Batson
jurisprudence and what is widely known about racial inequality
in our justice system has spurred legislative reform. (Assem.

14
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

Bill No. 3070 (2019–2020 Reg. Sess.); see Code Civ. Proc.,
§ 231.7.) But “[t]he duty to confront racial animus in the justice
system is not the legislature’s alone.” (Peña-Rodriguez v.
Colorado (2017) 580 U.S. __, __ [137 S.Ct. 855, 867].) “It is [past]
time that we, too, bring a greater sense of urgency to ferreting
out racial discrimination in the criminal justice system.” (People
v. Johnson, at p. 536 (dis. opn. of Liu, J.).)
Because the passage of time makes remand to explore the
prosecutor’s actual reasons for the contested strikes impractical
(see Battle, supra, 11 Cal.5th at p. 811 (dis. opn. of Liu, J.)), I
would reverse the judgment.
III.
Today’s opinion also concludes that the trial court did not
abuse its discretion by requiring defendants to wear stun belts
based on a few instances of cursing and profane gestures. I join
Justice Kruger in disagreeing with this conclusion. (Conc. opn.
of Kruger, J., ante, at pp. 1–8, 13–15.) The record must
demonstrate the “type of serious security threat at trial that
would justify the imposition of restraints under the ‘manifest
need’ standard.” (Mar, supra, 28 Cal.4th at p. 1220.) We have
said that “verbal outbursts” — the conduct the court ultimately
relies on today — do not justify the use of a stun belt. (Id. at
p. 1223, fn. 6 [“a stun belt may not properly be used, over a
defendant’s objection, to deter a defendant from making verbal
outbursts that may be detrimental to the defendant’s own
case”].)
I would further hold that this error by the trial court was
not harmless beyond a reasonable doubt. In Mar, we
determined that “the relative closeness of the evidence, the
crucial nature of defendant’s demeanor while testifying, and the

15
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

likelihood that the stun belt had at least some effect on
defendant’s demeanor” meant that “there [wa]s a reasonable
probability that the error affected the outcome of defendant’s
trial.” (Mar, supra, 28 Cal.4th at p. 1225.) Here, the court
imposed the stun belts during the penalty phase retrial after the
first penalty jury hung, and the second penalty jury deliberated
for nine days before reaching death verdicts. The jury’s
perception of the defendants, one of whom was representing
himself, would have been critical in weighing aggravating and
mitigating circumstances. (See People v. Jackson (2014) 58
Cal.4th 724, 777 (Jackson) (conc. opn. of Liu, J.) [“Wearing a
stun belt carries a substantial risk of altering a defendant’s
demeanor, and a defendant’s demeanor is often one of the most
important considerations for the jury in deciding whether a
capital defendant deserves to live or die. (See Riggins v. Nevada
(1992) 504 U.S. 127, 143–144 (conc. opn. of Kennedy, J.) . . . .”].)
A stun belt is “a device that . . . delivers an eight-second-
long, 50,000-volt, debilitating electric shock when activated by a
transmitter controlled by a court security officer.” (Mar, supra,
28 Cal.4th at p. 1204.) “ ‘The shock contains enough amperage
to immobilize a person temporarily and cause muscular
weakness for approximately 30 to 45 minutes. The wearer is
generally knocked to the ground by the shock and shakes
uncontrollably. Activation may also cause immediate and
uncontrolled defecation and urination, and the belt’s metal
prongs may leave welts on the wearer’s skin requiring as long
as six months to heal. An electrical jolt of this magnitude causes
temporary debilitating pain and may cause some wearers to
suffer heartbeat irregularities or seizures.’ ” (Id. at p. 1215.)
The trial court read to defendants a form that explained
the device’s capability — that “when activated [it] is capable of

16
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

delivering an impulse of 50,000 volts, the result of which may be
instant and complete immobilization of [the] body” — and
informed defendants that it “could be remotely activated [if the
wearer] make[s] sudden or hostile movements, [] tamper[s] with
the belt, fail[s] to comply with verbal commands, [or makes] any
overt acts of aggression or communication with persons in or
around [his] immediate vicinity.”
Awareness of this threat inflicts a type of “mental anguish
that results from simply wearing the stun belt.” (Wrinkles v.
State (Ind. 2001) 749 N.E.2d 1179, 1195 [banning the use of stun
belts in Indiana courtrooms altogether].) “Even when the jury
is not aware that the defendant has been compelled to wear a
stun belt, the presence of the stun belt may preoccupy the
defendant’s thoughts, make it more difficult for the defendant to
focus his or her entire attention on the substance of the court
proceedings, and affect his or her demeanor before the jury.”
(Mar, supra, 28 Cal.4th at p. 1219.) Thus, even in cases where
the jury was not informed that the defendant was wearing a
stun belt, courts, including ours, have found their improper use
prejudicial. (See id. at p. 1223; U. S. v. Durham (11th Cir. 2002)
287 F.3d 1297, 1309 (Durham).)
This psychological effect is particularly concerning with
respect to McClain, who was representing himself. (See Mar,
supra, 28 Cal.4th at p. 1225, fn. 7 [“the greatest danger of
prejudice arises from the potential adverse psychological effect
of the device upon the defendant rather than from the visibility
of the device to the jury”]; Durham, supra, 287 F.3d at p. 1306,
fn. 7 [“fear of discharge may eviscerate the defendant’s ability to
take an active role in his own defense”].) “Wearing a stun belt
is a considerable impediment to a defendant’s ability to follow
the proceedings and take an active interest in the presentation

17
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

of his case. It is reasonable to assume that much of a defendant’s
focus and attention when wearing one of these devices is
occupied by anxiety over the possible triggering of the belt. A
defendant is likely to concentrate on doing everything he can to
prevent the belt from being activated, and is thus less likely to
participate fully in his defense at trial.” (Durham, at p. 1306;
id. at p. 1309 [vacating conviction where stun belt impaired
defendant’s ability to “participate meaningfully” in his trial].)
Just as “restraints can impair a defendant’s ability to testify
effectively” (Jackson, supra, 58 Cal.4th at p. 741), a defendant
representing himself would experience the same “ ‘likelihood
that the stun belt had at least some [prejudicial] effect on [his]
demeanor’ ” (id. at p. 740). Here, we need not speculate as to
whether the belt adversely affected McClain’s demeanor or his
ability to participate in his own case. McClain said during
closing argument that if he “didn’t have this belt on,” he “would
be able to express [himself] a lot more boisterous[ly].” (Cf.
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 472
(conc. opn. of Liu, J.).)
Moreover, the likelihood of prejudice arises not only from
the “psychological effect of the device” (Mar, supra, 28 Cal.4th
at p. 1225, fn. 7), but also from the “ ‘inherent[] prejudic[e]’ ”
associated with the jury’s discovery in this case that defendants
were under the imposition of restraints (Deck v. Missouri (2005)
544 U.S. 622, 635). “[E]ven where the State does not specifically
argue the point,” the use of restraints “almost inevitably implies
to a jury, as a matter of common sense, that court authorities
consider the offender a danger to the community — . . . nearly
always a relevant factor in jury decisionmaking.” (Id. at p. 633.)
Here, the trial court disclosed the use of the belts to the
jury and, even worse, said the devices were placed on defendants

18
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

as “a security device to assure tranquility in the court, security
for everyone,” “based on things the court knows.” (Accord, conc.
opn. of Kruger, J., ante, at p. 10 [instead of giving the jury the
standard admonition not to speculate on the reason for
restraints, the trial court “told the jurors that the devices
defendants wore were for courtroom security and suggested the
court knew of undisclosed reasons warranting their use”].)
Although “there is no indication the jury in this case ever saw
the restraints” (id. at p. 12), I do not see why that matters where
the jury was explicitly made aware of the restraints by the trial
court in a prejudicial manner.
The trial court’s statements occurred in a proceeding
where the prosecution repeatedly argued defendants’
dangerousness as a reason they should receive death instead of
life imprisonment without parole. Among other statements, the
prosecutor argued that “life without parole [would] give
[Newborn] a chance to do something like this again, to somebody
who is in custody, whether it be a guard, a nurse, a therapist or
just a weaker fellow inmate. He is a very violent man, . . . a very
uncontrollable man, . . . and a very dangerous man.” The
prosecutor also said, “McClain is a really dangerous man. He is
a danger in here; he is a danger in the street, and he will be a
danger in state prison. And that is why life without parole is
not fair.” The prosecutor asked “who else will die at their hands”
and whether “based upon their past conduct, based upon the
evidence that you’ve heard,” if anyone could “guarantee that
they won’t harm again.” In this context, the trial court’s
disclosure of the stun belts and accompanying explanation that
the belts were “security device[s] to assure tranquility in the
court, security for everyone,” “based on things the court knows,”
are plainly prejudicial.

19
 PEOPLE v. HOLMES, McCLAIN and NEWBORN
Liu, J., dissenting

On this record, I cannot conclude that the use of the stun
belts was harmless beyond a reasonable doubt at the penalty
retrial. (See Mar, supra, 28 Cal.4th at p. 1225; Stephenson v.
Neal (7th Cir. 2017) 865 F.3d 956, 959 [reversing and remanding
to vacate defendant’s sentence based on the “possibility that the
defendant’s having to wear the stun belt . . . contaminated the
penalty phase of the trial”].)
I respectfully dissent.
LIU, J.

20
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Holmes, McClain and Newborn
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted

__________________________________________________________

Opinion No. S058734
Date Filed: January 31, 2022
__________________________________________________________

Court: Superior
County: Los Angeles
Judge: J. D. Smith
__________________________________________________________

Counsel:

Eric S. Multhaup, under appointment by the Supreme Court, for
Defendant and Appellant Lorenzo Newborn.

Debra S. Sabah Press and Charles J. Press, under appointments by the
Supreme Court, for Defendant and Appellant Herbert McClain.

Karen Kelly, under appointment by the Supreme Court, for Defendant
and Appellant Karl Holmes.

Edmund G. Brown, Jr., and Rob Bonta, Attorneys General, Dane R.
Gillette and Lance E. Winters, Chief Assistant Attorneys General,
Pamela C. Hamanaka and James William Bilderback II, Assistant
Attorneys General, Sharlene A. Honnaka, Dana M. Ali, Jaime L.
Fuster and Seth P. McCutcheon, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Eric S. Multhaup
35 Miller Avenue, #229
Mill Valley, CA 94941
(415) 381-9311

Karen Kelly
Attorney at Law
P.O. Box 6308
Modesto, CA 95357
(209) 571-1085

Debra S. Sabah Press
Attorney at Law
3571 Far West Boulevard, PMB 140
Austin, TX 78731
(510) 847-5933

Seth P. McCutcheon
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6133