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`Filed 6/28/18
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`IN THE SUPREME COURT OF CALIFORNIA
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`THE PEOPLE,
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`Plaintiff and Respondent,
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`v.
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`ERIC ANDERSON,
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`Defendant and Appellant.
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` ____________________________________)
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`S138474
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`San Diego County
`Super. Ct. No. SCE230405
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`A jury convicted defendant, Eric Anderson, of the first degree murder of
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`Stephen Brucker under the special circumstances of murder in the commission or
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`attempted commission of robbery and burglary. It also convicted him of
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`conspiracy to commit robbery and burglary and two counts of residential burglary.
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`It found defendant personally discharged a firearm during the commission of the
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`murder and conspiracy. After defendant waived a jury, the court convicted him of
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`being a felon in possession of a firearm. It also found true that he had suffered
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`two prior serious felony convictions and a third strike conviction, and that he had
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`served one prior prison term. After a penalty trial, the jury returned a verdict of
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`death. The court denied the automatic motion to modify the verdict and imposed a
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`judgment of death. It also imposed a prison sentence on the other counts and
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`enhancement allegations. This appeal is automatic.
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`We modify the judgment by striking a one-year enhancement the trial court
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`imposed for the prior prison term and, as modified, affirm the judgment.
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`1
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`I. THE FACTS
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`A. Guilt Phase
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`1. Overview
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`Defendant and others conspired to commit burglary and robbery at the
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`home of Stephen Brucker. On April 14, 2003, when the conspirators arrived at the
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`home, Brucker confronted them at the door. Defendant shot Brucker in the chest,
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`mortally wounding him, after which the conspirators fled. Previously, defendant
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`had committed two other residential burglaries.1
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`2. Prosecution Evidence
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`a. The Completed Burglaries
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`On January 8, 2003, the home of Arlene Bell in La Mesa was burglarized.
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`The home was ransacked, and many items were taken, including a carved jewelry
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`box with a “Made in Poland” label and some silver coins. Police later found the
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`jewelry box and silver coins in defendant’s residence in Poway. The items were
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`found in the bedroom of defendant’s housemate, James Stevens, to which
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`defendant had access. Inside the jewelry box were credit cards in defendant’s
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`name. Later, a cell phone not belonging to the Bell family was discovered in their
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`house. It had apparently fallen under a load of firewood. Defendant was the
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`subscriber of the cell phone’s telephone number.
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`On April 9, 2003, the home of John and Pamela Dolan in Alpine was
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`burglarized. The home was ransacked, and various items were missing, including
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`a .22-caliber handgun and a ring containing the inscription “Jenny.” Defendant
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`1
`Originally, there were three codefendants: Brandon Handshoe, Apollo
`Huhn, and Randy Lee. None are involved in this appeal. Handshoe pleaded guilty
`to reduced charges and agreed to testify. Lee was tried with defendant and
`acquitted of all charges. Huhn was tried simultaneously but with a different jury.
`He was convicted of murder with special circumstances and conspiracy. His
`judgment was later reversed on appeal.
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`2
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`later gave the ring to his girlfriend’s mother, who turned it over to law
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`enforcement. The stolen handgun was found under the seat of the Ford truck
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`defendant was driving when he was arrested in Oregon on May 16, 2003.
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`Matthew Hansen, a San Diego police officer, lived across the street from
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`the Dolan home. The day of the burglary, he heard a Ford Bronco that was “kind
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`of loud” drive down the Dolan driveway. When the Bronco emerged from the
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`driveway, Hansen paid particular attention. He “could distinctly hear it because it
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`was loud sounding leaving his driveway.” The next day, while driving in the area,
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`Hansen observed the same Bronco, with the same loud sound. It “sound[ed] like
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`there was some sort of exhaust problem on the vehicle.” Defendant was the
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`driver. Hansen wrote down the Bronco’s license number. The vehicle had been
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`purchased by, and was registered to, defendant. Police sometimes saw it at
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`defendant’s residence.
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`b. The Brucker Crimes
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`Stephen Brucker lived with his family in an unincorporated area of El
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`Cajon. Randy Lee was familiar with the Brucker home and knew that the family
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`had a safe. Zachary Paulson, Brandon Handshoe, and Valerie Peretti (Apollo
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`Huhn’s girlfriend, who was 15 years old and pregnant in April 2003) all testified
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`that, at various times beginning in 2002, Lee suggested to Handshoe and Huhn
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`that they burglarize the Brucker house and steal the safe, which, Lee said,
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`contained $1 million (according to Paulson) or $2 million (according to Peretti).
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`In early April 2003, defendant, Handshoe, and Huhn gathered at
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`Handshoe’s mobilehome in the Rios Canyon area of El Cajon and discussed
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`burglarizing the Brucker home to steal the safe. Paulson testified he was present
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`at the mobilehome in the first week in April when they discussed a robbery. Huhn
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`said he could “get into the safe.” Defendant said that “he could hold the guy
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`hostage” and would “pistol whip him” if necessary. Handshoe said he would
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`“watch out.”
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`Peretti testified that on April 14, 2003, she went to Handshoe’s
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`mobilehome around 12:30 p.m. Defendant, Huhn, and Handshoe were present.
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`She sensed that the others did not want her to be there. But then Handshoe told
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`defendant that it was “okay” because she was Huhn’s girlfriend. Handshoe told
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`her they were going to rob someone. She observed defendant “messing with some
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`guns.” She also saw him with a bag containing “disguises.” He had some kind of
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`a “hair piece” that was “salt and pepper” colored, and thick glasses. The three
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`talked “about how they were going to do this.” Defendant asked for a piece of
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`paper, then started drawing what Peretti described as “diagrams . . . of the house
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`and how he was going to do it.” Defendant did most of the talking. Defendant
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`“said how they were going to go and do it, and what cars were supposed to be
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`there, and how the doorway or something was set up.” He told Handshoe “that he
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`was going to stand over him while Brandon [i.e., Handshoe] could go in and get
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`the safe or whatever he wanted to do.” Defendant told Huhn to “keep watch.”
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`Peretti testified that defendant “seemed like he had done this before,” but
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`Handshoe and Huhn were nervous and scared.
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`Defendant, Huhn, and Handshoe left the mobilehome in defendant’s
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`Bronco, with defendant driving. Before they left, defendant pulled out a
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`semiautomatic firearm from his waistband, cocked it, said, “ ‘Let’s do this fast,’ ”
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`then put the gun back in his waistband. He provided gloves to Handshoe and
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`Apollo from his bag. Handshoe also had a firearm. They were gone for about half
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`an hour. Huhn returned first, appearing scared and upset. Handshoe returned
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`later.
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`Peretti admitted that when she first talked to her father and the police about
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`the crime, she did not tell them that Huhn had gone with the others. She said she
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`did not tell them about Huhn’s involvement “[b]ecause I loved him. He’s my
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`kid’s father.” She received immunity for her testimony.
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`Handshoe testified that on April 14, 2003, he was at his mobilehome with
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`Peretti, Huhn, and defendant. Defendant had a black .45-caliber firearm, and he
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`was “jacking rounds out of it.” At one point, Handshoe gave defendant a piece of
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`paper on which defendant drew a map. Defendant said something to the effect of,
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`“We’re going to do this right.” Defendant supplied Handshoe with a gun, which
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`Handshoe kept in his pocket and did not use.
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`Defendant, Huhn, and Handshoe then went to the Brucker home to
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`burglarize it. Defendant drove the three of them in his Bronco. When they
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`arrived, Handshoe remained in the car on the driveway acting as a “lookout.” He
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`had a walkie-talkie that defendant had supplied. Defendant, his firearm tucked
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`under his arm, and Huhn walked towards the front door and out of Handshoe’s
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`line of vision. Defendant was wearing what Handshoe said was a “disguise”—a
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`baseball cap and a wig. They were gone at most two minutes. Then Handshoe
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`heard a gunshot followed by a scream. Defendant and Huhn ran back to the car
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`and they “took off,” with defendant driving. Defendant “said something along the
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`lines of things went wrong and he shot the guy.”
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`While they were driving, Handshoe asked to get out of the car. Defendant
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`dropped him off, telling Handshoe that “if we were to say anything, we would be
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`next.” Handshoe went to a friend’s house then returned to his home. Peretti and
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`Huhn were there when he returned.
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`After being shot, Brucker called 911. He told the dispatcher that two White
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`males knocked on the door, and then one of them shot him in the heart. San Diego
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`County Deputy Sheriff Karl Miller was the first law enforcement officer to
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`respond. The front door of the Brucker house was open but the screen door was
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`closed. Deputy Miller heard someone inside say, “ ‘I’m in here.’ ” He went
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`5
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`inside and observed Brucker on the telephone. Brucker had blood “all down to his
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`waist area.” He was conscious but in a lot of pain.
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`Deputy Miller asked what happened. Brucker responded that he had heard
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`somebody at the front door. He went to the door and saw two men standing there.
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`Brucker “told them to leave the property or, in his words, ‘Get the fuck off my
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`property.’ ” After the men said something in reply, Brucker repeated to them what
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`he had said. Then, Brucker reported, one of the men said, “Fuck you,” and shot
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`him in the chest. He described the shooter as White, in his “30’s,” with a “salt-
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`and-pepper beard,” and wearing a black and white baseball cap. Of the other man,
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`Brucker said only that he was “a 20 year old.” (Defendant was 29 years old at the
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`time, Huhn was 22.)
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`Brucker was rushed to the hospital but soon died of a single gunshot wound
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`to his torso. A .45-caliber shell casing was found near the front door of the house.
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`Several witnesses who lived in the area testified that around the time of the
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`shooting, they observed a Bronco generally described as similar to defendant’s
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`either emerging from the Brucker house or nearby. One witness said the vehicle
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`was going fast, and the driver was wearing a “ball cap.” Another witness said the
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`vehicle went “zooming” by, and it was “very loud.” Another witness said the
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`vehicle had a loud and distinctive sound. One witness thought the Bronco she saw
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`was lighter in color than defendant’s. Previously, the same witness had told an
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`investigator that the driver was wearing a baseball cap and sunglasses and had a
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`mustache.
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`Travis Northcutt, a roommate of defendant’s along with James Stevens,
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`told Steven Baker, an investigator with the district attorney’s office, that defendant
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`had told him “that something big was going to happen, a big hit that involved a
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`safe.” Northcutt also told the investigator that when he, Stevens, and defendant
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`were watching a newscast of the Brucker murder, defendant told him to “ ‘keep
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`his fucking mouth shut,’ that he was only the third person to know that [defendant]
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`was involved and if he didn’t keep his mouth shut, he would be next.” Northcutt
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`also said he had seen defendant wearing a “goofy hairpiece.” When called to
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`testify, Northcutt generally denied the truth of these statements.
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`Charlene Hause, who had been defendant’s girlfriend, testified that he
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`normally drove a Bronco. But the last time she saw him, later in April 2003, he
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`drove a white truck. He told her he was using that truck “because they knew his
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`Bronco.” He had shaved off his mustache and said he was leaving the San Diego
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`area because of a parole violation.
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`Defendant’s parole agent testified that on April 30, 2003, when defendant
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`was at large, and after stolen property had been found in James Stevens’s and
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`defendant’s residence, resulting in Stevens being placed into custody, defendant
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`left a message on the voicemail of Stevens’s parole agent’s saying, “ ‘It’s all
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`fucking mine. Come and get me.’ ”
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`After the shooting, defendant went to Oregon. On May 16, 2003, Oregon
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`police stopped him while driving a white truck in Harney County. He had no
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`identification and said his name was James Stevens. The truck contained
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`materials for making false identification cards, a handcuff key, and the handgun
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`stolen from the Dolan home. Defendant was arrested and booked into the local
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`county jail under the name of James Stevens. His true identity was learned the
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`next day. A further search of the truck revealed a book entitled, “Counterfeit I.D.
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`Made Easy,” with several passages highlighted in pink.
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`Three witnesses who had shared a cell with defendant in the Oregon county
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`jail after his arrest testified that he talked to them about his plans to escape, which
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`included the possibility of violence against the guards. He showed each of them a
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`handcuff key in his possession. One of the cellmates drew for defendant a sketch
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`of the nearby town of Burns and the jail’s location. A search of defendant’s cell in
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`July 2003 uncovered the sketch, a bent piece of plastic, three razor blades in a
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`deck of cards, and two handcuff keys, one on defendant’s person.
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`In December 2003, Zachary Paulson, then an inmate in the San Diego
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`County jail, where defendant was also incarcerated, testified against defendant at
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`the preliminary hearing in this case. On February 14, 2005, several inmates,
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`including defendant, assaulted Paulson in jail, inflicting serious injuries.
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`The prosecution also presented telephone records and testimony showing
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`the existence, although not the content, of telephone calls among the various
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`participants during relevant times.
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`3. Defense Evidence
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`Defendant presented evidence attempting to raise a reasonable doubt as to
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`his guilt, including evidence challenging the credibility of prosecution witnesses,
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`especially Handshoe, Paulson, and Peretti; evidence that he often drove a white
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`truck; evidence regarding his appearance at different times; and evidence that the
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`Bronco seen in the area of the crime might not have been his.
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`Jeffrey Gardner, a construction contractor, testified that he employed
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`defendant the day after the Brucker murder. Defendant arrived at the jobsite
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`before 7:30 a.m. that morning. The white truck, but not the Bronco, was there.
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`Defendant was calm and appeared his usual self according to Gardner.
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`James Stevens testified that sometimes he drove defendant’s Bronco and
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`sometimes defendant drove his white truck. The day of the Brucker murder,
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`defendant drove Stevens’s truck. Stevens saw defendant that evening and noticed
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`nothing unusual about his behavior. The two went to work together the next
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`morning. Stevens denied that he had ever been with Travis Northcutt and
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`defendant watching coverage of the Brucker murder or that he heard defendant tell
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`someone to “shut the fuck up.”
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`B. Penalty Phase
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`1. Prosecution Evidence
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`The prosecution presented evidence that in July 1995, while driving a truck,
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`defendant fired around 12 shots from a .22-caliber firearm at the driver of a car
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`that passed in front of him. He told his passenger something along the lines of,
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`“That fucking bitch, who does she think she is?” Defendant later told a cellmate
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`in Oregon “that somebody in the white car had just aggravated him and he
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`unloaded a clip at the car.”
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`In March 1995, defendant was convicted of one count of residential
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`burglary and one count of possession of a stolen vehicle. In July 1995, he was
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`convicted of two counts of residential burglary.
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`2. Defense Evidence
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`Paul Mason testified that in 2003, he was a cellmate of Apollo Huhn. Huhn
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`told Mason that he went to the door of the Brucker home with “Brandon,” and
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`Huhn was the one who shot Brucker.
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`Other than Mason’s testimony, defendant stated that he did not want his
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`attorneys to present evidence in mitigation. However, the court permitted him to
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`make a statement to the jury. He told the jury the following:
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`“I’ve given a lot of thought to what I want to say to you guys, but, you
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`know, start off is nine pages. I’m down to one page, because, basically, I think
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`anything I say to you would be a wasted breath. I don’t think you’ll pay attention
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`to anything I got to say. In one ear, out the other. But I feel compelled to tell you
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`two things: One is that I don’t give a shit. Give me the death penalty. If you
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`believe I’m guilty, kill me. The second is: I’m innocent. Your verdict was
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`wrong, and I hope you all can’t sleep with yourselves. I don’t know what you
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`expected from my attorneys. This ain’t Perry Mason or Matlock. No one is going
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`to run into a courtroom saying, ‘I did it.’ What the hell did you expect? Did you
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`not listen to the witnesses? Not a single piece of evidence.”
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`At this point, the court told defendant that this was his chance to address
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`mitigating factors, not to admonish the jurors. Defendant then completed his
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`statement: “I really despise all of you and your decision. I don’t think you were
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`reasonable or fair. Thanks for nothing.”
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`II. DISCUSSION
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`A. Issues Regarding Guilt
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`1. Denial of Motions to Sever the Defendants
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`Defendant moved to sever his trial from that of the codefendants,
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`Handshoe, Huhn, and Lee. The court denied the motion, but to protect defendant,
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`it ordered that Huhn be tried in front of a different jury than defendant and Lee.
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`Later, defendant joined codefendant Lee’s separate severance motion. The court
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`denied that motion also. Defendant contends the court erred both times.
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`“The applicable law is settled. The Legislature has expressed a preference
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`for joint trials; therefore, two or more defendants jointly charged with crimes must
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`be tried together unless the court orders separate trials. (Pen. Code, § 1098;
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`People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378.) Joint trials
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`promote efficiency and help avoid inconsistent verdicts. (Zafiro v. United States
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`(1993) 506 U.S. 534, 537; Bryant, Smith and Wheeler, at pp. 378-379.)
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`‘[I]mportant concerns of public policy are served if a single jury is given a full and
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`fair overview of the defendants’ joint conduct and the assertions they make to
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`defend against [the] ensuing charges.’ (Bryant, Smith and Wheeler, at p. 379.)
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`The court has discretion to order separate trials if there is an incriminating
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`confession, prejudicial association, likely confusion due to evidence on multiple
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`counts, conflicting defenses, or the possibility that a codefendant might provide
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`exonerating testimony at a separate trial. (Ibid.) Prejudicial association might
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`exist if ‘the characteristics or culpability of one or more defendants [is] such that
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`the jury will find the remaining defendants guilty simply because of their
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`association with a reprehensible person, rather than assessing each defendant’s
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`individual guilt of the crimes at issue.’ (Id. at p. 383.) We review the court’s
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`denial of severance for abuse of discretion based on the facts as of the time of the
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`ruling. If the court properly denied severance at the time, the reviewing court may
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`reverse a judgment only if it finds that the joint trial caused gross unfairness that
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`denied due process. (Id. at p. 379.)” (People v. Sánchez (2016) 63 Cal.4th 411,
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`463-464.)
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`We see no abuse of discretion. “Defendant was charged with all of the
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`crimes, making this a ‘classic case for a joint trial.’ (People v. Bryant, Smith and
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`Wheeler, supra, 60 Cal.4th at p. 379.)” (People v. Sánchez, supra, 63 Cal.4th at p.
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`464.) Virtually no reason existed to try the defendants separately. Because the
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`court ordered a separate jury for Huhn, no incriminating confession was admitted
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`against defendant. The court had discretion to conclude defendant would not be
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`prejudiced by association with the codefendants, whom the evidence showed were
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`less culpable than defendant. Because defendant was charged with all counts,
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`there was no possibility of confusion due to evidence on multiple counts. No
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`indication exists that any codefendant would have provided exonerating testimony
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`at a separate trial.
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`Defendant argues that Lee’s defense—that Lee was not one of the
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`conspirators—conflicted with his defense. He notes that the trial court granted a
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`motion for acquittal of the conspiracy charge that Lee made, and claims the ruling
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`was erroneous and prejudiced him. We need not decide whether the trial court
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`correctly acquitted Lee of the conspiracy charge. Lee’s defense was different than
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`defendant’s, but not antagonistic in a way that prejudiced him. Contrary to
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`defendant’s argument, the jury’s acceptance of Lee’s defense would not preclude
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`it from acquitting defendant. The jury could easily judge Lee’s guilt and
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`defendant’s guilt separately.
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`Handshoe later pleaded guilty and testified against defendant under
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`circumstances discussed in part II.A.5., post. Defendant argues that Handshoe’s
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`transition from a codefendant to a prosecution witness also made the denial of the
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`severance motions erroneous. We disagree. The possibility that a codefendant
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`might later plead guilty—a possibility that always exists when multiple defendants
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`are charged together—is not one of the factors a court must consider in ruling on a
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`severance motion. If a codefendant pleads guilty in a way that harms another
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`defendant, that defendant may make appropriate motions at that time, and an
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`appellate court may review any resulting rulings. Indeed, defendant does raise on
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`appeal various arguments regarding Handshoe’s change of plea. We consider
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`those arguments below. (Pt. II.A.5., post.)
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`Denial of severance did not violate any federal constitutional right. As the
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`United States Supreme Court recently explained, trying defendants together, and
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`allowing the jury to decide based on all the evidence, can increase the reliability of
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`the resultant verdict. “Joint proceedings are not only permissible but are often
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`preferable when the joined defendants’ criminal conduct arises out of a single
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`chain of events. Joint trial may enable a jury ‘to arrive more reliably at its
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`conclusions regarding the guilt or innocence of a particular defendant . . . .’ ”
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`(Kansas v. Carr (2016) 577 U.S. __, __ [136 S.Ct. 633, 645]; see People v.
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`Sánchez, supra, 63 Cal.4th at pp. 465-466.)
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`“In short, the joint trial was not unfair to defendant at all, much less grossly
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`unfair. The court acted within its discretion in implementing the legislative
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`preference for conducting joint trials.” (People v. Sánchez, supra, 63 Cal.4th at p.
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`466.)
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`2. Denial of Motion to Sever Counts
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`Defendant moved to sever the burglary counts from the counts concerning
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`the Brucker crimes. The court denied the motion. Defendant contends the court
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`erred.
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`The law prefers trying charged offenses together because doing so
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`ordinarily promotes efficiency. (People v. O’Malley (2016) 62 Cal.4th 944, 967.)
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`Penal Code section 954 embodies this preference. That section provides as
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`relevant: “An accusatory pleading may charge two or more different offenses
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`connected together in their commission, . . . or two or more different offenses of
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`the same class of crimes or offenses, under separate counts . . . .” (Pen. Code,
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`§ 954.) “Offenses ‘committed at different times and places against different
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`victims are nevertheless “connected together in their commission” when they are
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`. . . linked by a “ ‘common element of substantial importance.’ ” ’ ” (People v.
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`Mendoza (2000) 24 Cal.4th 130, 160.) The two burglaries and the Brucker crimes
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`“all involved the intent to illegally obtain property,” which constitutes a common
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`element of substantial importance that makes joinder proper. (Ibid.; see Alcala v.
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`Superior Court (2008) 43 Cal.4th 1205, 1219.)
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`Even if, as here, joinder is proper, the court may order the counts tried
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`separately. “[T]he court in which a case is triable, in the interests of justice and
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`for good cause shown, may in its discretion order that the different offenses or
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`counts set forth in the accusatory pleading be tried separately or divided into two
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`or more groups and each of said groups tried separately.” (Pen. Code, § 954.)
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`“When, as here, the statutory requirements for joinder are met, a defendant must
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`make a clear showing of prejudice to establish that the trial court abused its
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`discretion in denying the defendant’s severance motion.” (People v. Mendoza,
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`supra, 24 Cal.4th at p. 160.) “In determining whether a trial court’s refusal to
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`sever charges amounts to an abuse of discretion, we consider four factors: (1)
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`whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether
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`some charges are unusually likely to inflame the jury against the defendant; (3)
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`whether a weak case has been joined with a stronger case so that the spillover
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`effect of aggregate evidence might alter the outcome of some or all of the charges;
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`and (4) whether any charge carries the death penalty or the joinder of charges
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`converts the matter into a capital case.” (People v. O’Malley, supra, 62 Cal.4th at
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`p. 968.)
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`We see no abuse of discretion. The trial court carefully considered each of
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`these factors when it exercised its discretion. Cross-admissibility is not “a
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`precondition to joinder of charges.” (People v. O’Malley, supra, 62 Cal.4th at p.
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`968, citing Pen. Code, § 954.1.) But, as the trial court found, it exists here to a
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`“limited” extent. The court did not find cross-admissibility to show identity. “The
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`greatest degree of similarity is required for evidence of uncharged misconduct to
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`be relevant to prove identity. For identity to be established, the uncharged
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`misconduct and the charged offense must share common features that are
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`sufficiently distinctive so as to support the inference that the same person
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`committed both acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) The court
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`did not find the burglaries sufficiently distinctive to show identity under this
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`standard.
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`But the court correctly found that the three incidents (the Bell burglary, the
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`Dolan burglary, and the Brucker crimes) were mutually relevant on the question of
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`intent. The least degree of similarity is required to prove intent. All that is needed
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`is for the crimes to be sufficiently similar to support an inference that the
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`defendant probably had the same intent each time. (People v. Soper (2009) 45
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`Cal.4th 759, 776.) Here, evidence that defendant stole property during the
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`daytime Bell and Dolan burglaries supported an inference that he had a similar
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`intent at the Brucker home. The crimes were also relevant to show a common plan
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`or scheme. “To establish the existence of a common plan or scheme, ‘the common
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`features must indicate the existence of a plan rather than a series of similar
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`spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ ”
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`(People v. Avila (2006) 38 Cal.4th 491, 586; accord, People v. Capistrano (2014)
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`59 Cal.4th 830, 849.) The jury could reasonably conclude that the three incidents
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`were not merely a series of spontaneous acts but part of a plan to steal property
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`repeatedly during daytime burglaries. Additionally, evidence that defendant used
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`his Bronco in the Dolan burglary was relevant to show that the Bronco the
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`witnesses saw at the time of the Brucker crimes was likely defendant’s. It may
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`have been mere coincidence that a Bronco was used in the two burglaries five days
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`apart, but, together with the rest of the evidence, the jury could reasonably
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`conclude otherwise.
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`The Bell and Dolan burglaries were not likely to inflame the jury regarding
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`the Brucker crimes. Although the Brucker crimes were far more serious than the
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`other burglaries, given the strength of the evidence regarding those burglaries, this
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`circumstance did not compel severance.
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`This is not a matter of joining a weak case with a stronger one. The
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`evidence that defendant participated in all three incidents was strong. He left his
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`cell phone in the Bell home and property from that burglary was found in his
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`home, albeit in Stevens’s bedroom. Credit cards in defendant’s name were in the
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`stolen jewelry box. Additionally, defendant later left a voicemail message saying
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`the items were his and challenging the authorities to “come and get” him.
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`Defendant’s Bronco was involved in the Dolan burglary, he gave a ring stolen in
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`that burglary to his girlfriend’s mother, and he possessed a gun stolen in that
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`burglary when arrested in Oregon. Defendant’s participation in the Brucker
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`crimes was shown by strong evidence, including the testimony of Zachary
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`Paulson, Brandon Handshoe, and Valerie Peretti; the testimony of various
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`witnesses who saw a Bronco generally similar to defendant’s in the area of the
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`Brucker crimes; and Brucker’s description of the shooter, which generally
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`matched defendant and made clear that the shooter was the older of the two who
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`came to the door. Defendant was the older man by far.
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`This is a capital case. But that circumstance merely means the court had to
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`carefully exercise its discretion to avoid prejudicing defendant. It does not
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`automatically require severance. “Even where the People present capital charges,
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`joinder is proper so long as evidence of each charge is so strong that consolidation
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`is unlikely to affect the verdict.” (People v. Ochoa (2001) 26 Cal.4th 398, 423;
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`accord, People v. O’Malley, supra, 62 Cal.4th at p. 969.) The court acted
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`reasonably in finding that consolidation was not likely to affect the verdict.
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`For these reasons, we also reject defendant’s argument that joinder was so
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`unfair as to violate his federal constitutional rights. The trial court properly
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`permitted the counts to be tried together.
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`3. Defendant’s Pitchess Motion
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`Before trial, defendant made a Pitchess motion (Pitchess v. Superior Court
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`(1974) 11 Cal.3d 531) to discover past complaints concerning Investigator Steven
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`Baker that related to dishonesty or other misconduct. The court found defendant
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`showed good cause for discovery and ordered an in camera review with the
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`custodian of records in the absence of the prosecutor and defense. After
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`conducting the hearing, in open court, the court announced to the parties, “The
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`view has been conducted. No documents are being ordered released.”
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`“When a defendant shows good cause for the discovery of information in
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`an officer’s personnel records, the trial court must examine the records in camera
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`to determine if any information should be disclosed. . . . Pitchess rulings are
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`reviewed for abuse of discretion.” (People v. Winbush (2017) 2 Cal.5th 402, 424.)
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`“[T]o protect the officer’s privacy, the examination of documents and questioning
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`of the custodian should be done in camera . . . , and the transcript of the in camera
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`hearing and all copies of the documents should be sealed.” (People v. Mooc
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`(2001) 26 Cal.4th 1216, 1229.) The trial court did this. Defendant properly asks
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`us to review the sealed record of the in camera hearing to determine whether the
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`court erroneously failed to provide discovery that he should have received. (Id. at
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`pp. 1229-1230.)
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`We have done so. The trial court did not abuse its discretion. It questioned
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`the custodian of records carefully to ensure that she had conducted a thorough
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`search and brought to court all relevant records. It then correctly found there were
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`no materials to disclose.
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`4. Admission of Evidence of the Events in Oregon
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`Before trial, defendant moved to exclude evidence of his flight to Oregon
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`and his plans to escape from custody. After a hearing, the court denied the
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`motion. Citing People v. Pensinger (1991) 52 Cal.3d 1210 and People v. Remiro
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`(1979) 89 Cal.App.3d 809, it found the proffered evidence probative to show
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`consciousness of guilt and not unduly prejudicial under Evidence Code
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`section 352. Defendant contends the court erred.
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`