P. v. Noriega

Filed 12/15/08 P. v. Noriega CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

James Manuel Noriega appeals the judgment entered after a jury convicted him of the first degree murders of Kathleen Martinez and Savannah Zamora and the second degree murder of Martinez's fetus. (Pen. Code, 189/187, subd. (a).) The jury also found true the special circumstance allegation that appellant committed multiple murders, and the allegation that he personally inflicted injury that resulted in termination of a pregnancy. (Pen. Code,  190.2, subd. (a)(3) & 12022.9.) The trial court sentenced him to 15 years to life in state prison on the second degree murder count, plus consecutives sentences of life without the possibility of parole on each of the first degree murder counts.^[1] Appellant contends the trial court committed prejudicial error when it (1) failed to recuse his trial attorney for conflicts of interest; (2) admitted unreliable eyewitness identification testimony; (3) denied his Wheeler/Batson motions (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258); (4) limited cross-examination and excluded impeachment evidence; (5) excluded his "emotional reaction" to the murders; and (6) excluded third party culpability evidence. He also alleges cumulative error. We affirm.

FACTS AND PROCEDURAL HISTORY

I.

The Prosecution's Case-In-Chief

Appellant began dating 21-year-old Kathleen Martinez in early 2001.^[2] On July 6, Martinez checked into room 11 at the Palms Motel in Santa Maria with her two-year-old daughter, Savannah Zamora. Martinez was eight months pregnant at the time. She told the motel clerk that three people would be occupying the room. Over the next 10 days, the motel manager saw appellant in or near room 11 on several occasions. Appellant also came to the office two or three times to borrow the spare key for the room.

Michelle Stinn lived in room 16 at the Palms Motel. On July 15, around 12:30 or 1:30 a.m., Stinn was in her room when she heard a female voice yelling and a child crying. Stinn went outside and saw Martinez coming out of room 11 while yelling, "get the fuck out of my room now." When Stinn asked Martinez if she needed help, Martinez responded that she wanted to get a man out of her room. Stinn, who worked as a security guard, put on her uniform and went to room 11, where she encountered appellant. Stinn told appellant she would call the police if he did not leave. Appellant, who appeared intoxicated, left a few minutes later.

After appellant arrived at his parents' house, at approximately 6:30 that morning, he spent 15 to 20 minutes staring at an Indian doll that belonged to his daughter. Appellant said that the pouch around the doll's neck should be taken to a medicine man to remove the evil spirits. Appellant's father, James Noriega, Sr., told him to "shut up," but he continued staring at the doll and talking about evil spirits. After James told appellant to leave, appellant took the pouch from the doll and left.^[3]

At about 10:15 that night, Palms resident Robert Silva saw Martinez standing by the motel's public kitchen and heard her say, "I'm tired of this fucking shit," as she looked down the hallway toward room 11. Silva then heard a male voice from room 11 respond, "you fucking bitch." Later that night, appellant returned to his parents' house. When appellant refused to leave, his mother called the police. James told the police that he wanted appellant to leave and that appellant was "coming down because he was pretty high that day." When the police told appellant he had to leave, he said he was going back to the Palms and started walking in the direction of the motel.

The next morning, Irene Hopper came to the Palms to visit her friend Manoocher Hajinabi, who lived in room 14. At about 10:15 a.m., Hopper was outside waiting for Hajinabi to arrive, when she saw appellant sitting on the ground crying.^[4] Appellant stood up and told Hopper he was an "F.B.I," or full-blooded Indian, and that he could not run away from the evil spirits that were inside him. Appellant's eyes were dilated, but he denied using drugs. At about 11:40 a.m., Hopper told appellant she needed to use the bathroom. Appellant took her to room 11 and knocked on the door. Martinez opened the door and let them in. After Hopper used the bathroom and was leaving with appellant, Martinez asked him to come back in the room. Appellant started crying again and went back into the room as Hopper left.

Sometime between 1:00 and 2:00 p.m., appellant borrowed a vacuum cleaner from the motel manager. Appellant returned it 15 to 20 minutes later.

When Hajinabi arrived, he and Hopper went to his room, which was across the hall and two or three doors down from room 11. At approximately 1:00 p.m., Hopper heard Savannah let out a short yell. About 10 to 15 minutes later, Hopper heard the sound of a vacuum cleaner, which appeared to be coming from the hallway. The sound continued for about 10 minutes. A few minutes later, Hopper heard a woman's voice say, "Get the fuck out of here. You are not supposed to be here in the first place." Hajinabi subsequently heard a woman let out a short scream.

Hopper left Hajinabi's room at about 3:15 p.m. When she passed room 18, she noticed that the door was open and the lights were off. Hopper heard movement coming from the room that sounded as if someone was moving things. Hopper also saw a "young man" who lived "right across" from room 18 with one or two plastic garbage bags in his hands.^[5] Hopper asked him if he was moving out, and he responded, "Yeah." Hopper did not see this man ever go toward Fitzgerald's room.

Terrin Fitzgerald lived in room 18. He testified that appellant knocked on his door sometime that evening and asked if he could put some toys in his room. After Fitzgerald agreed, appellant returned with nine or ten plastic bags of toys and other items. Appellant declined Fitzgerald's offer to stay the night in his room.

Between 5:00 and 6:00 p.m., James arrived home to find appellant "in a daze" in the living room. Appellant told James he could not stay at the Palms because Martinez was not there and he did not have a key to the room. James allowed appellant to stay the night. When James woke appellant up the following morning at about 6:30 a.m., appellant complained that his back hurt. James went to work, then returned home at about 9:30 a.m. Appellant told James his back still hurt and that he had nowhere to go. James took appellant to town, dropped him off, and told him not to return to the house until he got home from work.

At approximately 8:30 the same morning, the Palms Motel manager noticed that the front door to room 11 was off its hinges and called the police. An officer arrived at the motel at approximately 9:00 a.m., and entered room 11. There was no bedding or clothing in the room, and a mop and bucket of soapy water were on the floor. The room appeared to have been recently vacuumed. The officer proceeded to the bathroom, where he found the bodies of Martinez and Savanna in the bathtub, covered in wet blankets. A pair of stretch pants were twisted around Martinez's neck. Both bodies were wet and covered with soapy residue. The entire room smelled of soap and bleach. Wipe marks were visible on the tile, sink and toilet, and there was soap residue on the floor. It was apparent that the bathroom floor had been recently mopped.

The pathologist determined that Martinez, Savannah, and Martinez's fetus had most likely died between 1:00 and 6:00 p.m., on July 16. Savannah died of asphyxiation caused by smothering, and had also suffered several blows to her head. Martinez died of asphyxiation caused by smothering and ligature strangulation. It also appeared that her body had been exposed to hot water. Both victims had bruising injuries on their bodies that were consistent with a struggle, although it did not appear that either of them had been sexually assaulted.^[6]

After James heard about the murders on the radio that same day, he notified the police that appellant was at his house. Appellant was arrested that evening. Photographs taken shortly after his arrest showed injuries on his left wrist and his right hand and elbow.

Appellant gave a videotaped interview, which was played for the jury. Appellant initially claimed he last saw Martinez and Savannah after their fight on the morning of July 15. When told that the police had seen him walking toward the motel that same night, he said he had only returned to the room for a moment because Martinez told him to leave as soon as he arrived. He also claimed that he "[j]ust wandered" around after he left his parents' house on the morning of July 16, and denied returning to the motel that day.

James told the police that appellant's behavior had changed over the preceding three months. Appellant was "paranoid" and acted like a "zombie." He also mumbled to himself and stared at people and objects for long periods of time.

During a search of the residence of appellant's parents, the police found a box containing documents bearing appellant's name along with items of clothing that included a tank top and a pair of sweatpants. On the back of the tank top was a bleach stain of intersecting lines that resembled the irregular pattern of the tile in the bathtub enclosure where the bodies of Martinez and Savannah were found. A criminalist testified that the stain was caused when the wearer of the tank top sat on the ledge of the bathtub while it was covered in bleach diluted by water. The sweatpants were also stained with bleach, in a pattern of drips and spatters that resembled those found on the front of the tank top. The sweatpants resembled the pair that Martinez's mother had given her two days before the murders, and no similar sweatpants were ever found. James also gave police the pair of jeans that appellant had worn the previous night. A small brown Indian pouch was found in one of the pockets. Martinez and Savannah were determined to be potential contributors of DNA recovered from the zipper of the pouch. A mechanical engineer who testified on behalf of the prosecution opined it was "highly probable" that the zipper had caused an abrasion found on Savannah's chin.

On July 20, Fitzgerald was contacted by police detectives after the plastic bags and other items were discovered in his room. When the detectives encountered Fitzgerald in front of the motel, he was dirty and unkempt and was smoking marijuana. Some of his responses to the detectives' questions were incoherent. He was shown a photograph of Martinez and a photograph of appellant that was taken on the night of his arrest, but he did not recognize either of them.^[7] When asked about the property found in his room, Fitzgerald said that "some guy" had given it to him.

A total of 263 items were seized from Fitzgerald's room, including toys, a stroller, bedding, and adult's and children's female clothing. Most of the items were wrapped in bedding, and some of them were wet. Martinez's mother subsequently identified many of the items as belonging to Martinez and Savannah.

When the detectives interviewed Fitzgerald again on July 26, he was much more lucid and coherent. Fitzgerald described the individual who brought the property to his room as a six foot, one-inch tall man who had sideburns and looked as if he was from "New Guinea." The detectives presented Fitzgerald with a "six-pack" photographic lineup that included the same photograph of appellant that Fitzgerald had been shown on July 20. Fitzgerald was told he was not obligated to pick anyone and that the man in question might not appear in any of the photographs. Fitzgerald initially identified an individual in the fourth photograph, then said that appellant "looked familiar." Fitzgerald said he had also seen the individuals depicted in the first and third photographs. The detective then asked Fitzgerald to close his eyes in order to "visualize" the person who brought the property to his room. As soon as Fitzgerald opened his eyes, he pointed at the photograph of appellant, which was in the fifth position, and said he was positive that this was the individual in question.

Joshua Fuchs shared a jail cell with appellant for approximately nine months in 2002.^[8] Fuchs testified that appellant told him he was "missing some time" and asked if Fuchs knew anyone who would be willing to give him an alibi for $10,000. Appellant later told Fuchs that he no longer needed the alibi because all of his time had been accounted for. Appellant also had a conversation with Fuchs about killing the mother of Fuchs's child. Appellant told him he could get away with it by smothering her with a pillow, which would not leave any DNA or fingerprints and would keep her quiet. Appellant also told him he should kill any witnesses. On another occasion, appellant said he wanted to lose weight because he did not want the jury to think he was capable of ripping a door from its hinges. While appellant consistently denied committing the murders and believed that the perpetrator might be someone named "Carlitos," he never told the police because he did not want to be labeled a "snitch."

Gary Gardner lived in room 19 at the Palms. He testified that he worked at a machine shop and did not know the people who lived in room 11. He said he did not socialize with any of his neighbors and kept his doors closed because there were "all kinds" of "weird people" living there. On July 16, 2001, he started work at 6:00 a.m., and did not notice anything unusual when he got home that afternoon. His time card showed that he clocked in at 7:39 that morning and out at 4:33 p.m. He did not know Hopper and did not recall having a conversation with anyone about moving that day. He also did not recall anyone seeing him standing in his doorway holding plastic bags.

In April 2003, Gardner had a discussion with a man in a park about the murders. The subject came up after Gardner revealed that he lived at the Palms. He denied having anything to do with the murders, and also denied ever telling the man in the park or anyone else that he was the perpetrator.^[9]

II.

The Defense

Ronald Meagher lived in room 9 of the Palms at the time of the murders. He suffers from bipolar disorder and has not taken medication for his condition since 1999. According to Meagher, he called the police at 5:15 a.m., eight days before the murders and reported "real loud fighting" in room 11 between the female occupant and appellant, whom she called "Carlos."^[10] Meagher claimed that he called the police after seeing appellant open the lock on the front door with a pocket knife.

Aaron and Arturo Aragon testified that appellant spent time at their house on the day of the murders. Both men are good friends of appellant and have known him since they were all children. They live with their family down the street from appellant's parents. Arturo first testified that from about 10:35 a.m., to about 12:30 p.m., he and appellant sat in the garage and watched television. He later testified that appellant arrived about 11:30 a.m., or noon, and left at about 1:00 or 1:30 p.m. Then he testified that it could have been anytime in the afternoon.

Andrea Noriega, appellant's niece, was 16 years old at the time of the murders. She testified that no one was home at her grandparents' house when her mother dropped her off there after summer school on July 16. When appellant arrived five to ten minutes later, he acted normal. Appellant was still there when Andrea left at about 6:00 or 6:30 p.m. Andrea's mother Irma verified this, and testified that appellant appeared "as himself" the one time she saw him three or four days before the murders.

Anthony Noriega Jr., appellant's brother, testified that he arrived at his parents' house on July 17 to find the police there. The police told Anthony they were looking for appellant because they believed he had murdered Martinez and Savannah. After the police left, Anthony saw appellant walking down the street. Anthony got in his car, drove up to appellant, and told him to get in. When Anthony told him what the police had said, appellant "looked sorry to hear the news" and "seemed to get tears in his eyes." The two men stayed at their parents' house until the police returned and arrested appellant.

Helen Noriega, appellant's mother, testified that appellant did not act unusual during the time of the murders. She acknowledged, however, that she called the police on the night of July 15 and asked the police to remove appellant from the house. She also testified that he was back at the house the following day when she got home from work at about 5:00 p.m., and stayed the night. According to Helen, appellant appeared to be "in shock" after being told what had happened and that the police were looking for him. Helen acknowledged that appellant kept his clothes in a box at her house.

Dr. Robert Shomer offered expert identification testimony that disputed the reliability of Fitzgerald's identification of appellant. Dr. Roderick Pettis, a psychiatrist, also offered testimony regarding the factors that might affect the reliability of Fitzgerald's identification given his mental disorder.

Records from the mental health facility that provides outpatient treatment for Fitzgerald and administers his medication indicate that he signed in on July 16 and 17. The July 16 entry stated that Fitzgerald had signed in at 7:49 p.m., which was after the facility had closed.

Defense expert Monica Ghannam testified that Savannah could be excluded as a contributor of the DNA from the zipper on the pouch that appellant had taken from the Indian doll. While Martinez could not be excluded, the profile was consistent with 1 in 80 Hispanics.

III.

The Prosecution's Rebuttal

The police found no evidence of any connection between the victims and Fitzgerald or Gardner, other than the fact that they all lived at the Palms. The police department had not received any calls regarding any incidents at the Palms in the month of July prior to the call from the motel manager on July 17.

Prosecution investigator Jeff Ellis testified that during his interview with Arturo Aragon, Arturo repeatedly stated that appellant had been at his house on July 15, not July 16. Arturo said he knew this because July 16 was a Monday and he would have been at work. Aaron also told Ellis that appellant had been there on a Sunday, but he went "back and forth" between the two dates throughout the interview. Aaron also said that Arturo would have a better recollection of the correct date.

Defense investigator Lawanda Lyons-Pruitt testified that appellant's niece Andrea told her she had arrived at her grandparents' house before appellant on the day of the murders, and that appellant arrived shortly thereafter. Lyons-Pruitt also interviewed Arturo, who gave differing answers regarding the time appellant had been at his house on July 16. Arturo said it had to have been before 2:00 p.m., but then said "it was just in the afternoon, that's all I know."

DISCUSSION

I.

Conflict of Interest

Appellant contends that his trial attorney, Santa Barbara County Deputy Public Defender, Thomas Allen, had a disabling conflict of interest. We conclude that no such conflict existed, and that any purported conflict did not adversely affect Allen's performance as appellant's attorney. We further conclude that appellant validly waived his right to conflict-free counsel.^[11]

Background

Over three years prior to trial, the prosecution discovered that in 1999 the Santa Barbara County Public Defender's office had represented Terrin Fitzgerald in a case in which he pled guilty to battery. Accordingly, the prosecution requested a hearing to determine whether Allen had a conflict of interest. The public defender filed a memorandum stating that the prior representation of Fitzgerald was unrelated to the facts of this case, and that Allen had obtained no secrets or confidential information that could have caused a conflict. Allen submitted a declaration verifying that he possessed no information about the prior representation. The trial court appointed attorney David Bixby from the Alternate Public Defender's office to consult with appellant about the issue. After Bixby conferred with appellant, he and appellant both informed the court that appellant wished to keep Allen as his attorney. The court found that no conflict existed, and that appellant had validly waived any potential conflict.

Allen subsequently discovered prior to trial that he had personally represented Fitzgerald in 1992 on a commercial burglary charge that resulted in a misdemeanor trespass conviction. After Allen disclosed the prior representation, the court scheduled another hearing and appointed an attorney to advise Fitzgerald on the matter. At the hearing on January 15, 2002, Bixby stated that appellant still wanted Allen to represent him. Appellant personally confirmed this and again waived any potential conflict of interest. Bixby notified the court: "[W]e discussed the procedural issues as addressed in Alcocer [v.] Superior Court [(1988) 206 Cal.App.3d 951] and went through each of those steps, and Mr. Noriega has come to his own conclusion, I think independently, and has been able to weigh out the issues carefully, and I think he's been able to make an informed decision about what he wants to do today." Fitzgerald, personally and through his attorney, also waived any potential conflict in being cross-examined by Allen.

On August 21, 2003, the prosecution requested another hearing on the conflict issue upon discovering that the public defender's office had previously represented potential witnesses Augustine and Jesus Uribe and Eric Estrada, and two unnamed individuals who were confidential informants for the prosecution. The prosecution asked the court to "order whatever course will uphold the integrity of the judicial process." At the September 4 hearing, Allen identified nine additional potential witnesses who were former clients of the public defender's office including, Joshua Fuchs, Robert Silva, Angela Castro, and Gary Gardner.^[12] Allen represented that none of the prior representations were related to the charges against appellant, and that he did not possess any information from those prior representations that would interfere with his representation of appellant.

At the continued hearing the following day, Bixby notified the court that he had again consulted with appellant and that appellant remained confident that Allen would vigorously cross-examine all the witnesses and perhaps argue to the jury that some of them may have committed the murders. Bixby emphasized that appellant was "adamant" that Allen continue representing him. Appellant personally informed the court he understood the potential conflicts, yet believed that he was receiving "excellent representation" and was therefore waiving his right to have a different attorney appointed. Appellant also stated his understanding that his waiver could prevent him from successfully arguing on appeal that Allen had a disabling conflict of interest. He also understood that replacement counsel would be given sufficient time to prepare, and made it clear that his decision was not based on the time factor.

The court found that appellant had knowingly, intelligently and voluntarily waived his right to replace Allen. The court further found that while there was no actual conflict, there was "the appearance of a conflict." The court nevertheless concluded it would be a "substantial miscarriage of justice" to force appellant to accept a new attorney, reasoning that "the psychological effect, moral effect, the loss of . . . someone who put so much in the case far outweighs any appearance of conflict . . . ."

General Legal Principles

"'The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.' [Citation.] '"Conflicts of interest may arise in various factual settings. Broadly, they 'embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.'"' [Citation.] []  Under the federal Constitution, when counsel suffers from an actual conflict of interest, prejudice is presumed. [Citation.] This presumption arises, however, 'only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."' [Citation.] An actual conflict of interest means 'a conflict that affected counsel's performance-as opposed to a mere theoretical division of loyalties.' [Citation.] 'Under the Sixth Amendment of the federal Constitution, reversal is required if a defendant, over a timely objection, is forced to continue with conflicted counsel.' [Citation.] To obtain a reversal for this type of error, 'the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsel's performance.' [Citations.]" (People v. Roldan (2005) 35 Cal.4th 646, 673-674.)

"'To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an "informed speculation" that the asserted conflict adversely affected counsel's performance. [Citations.]' [Citation.] 'But "[p]ermissible speculation giving rise to a conflict of interest may be deemed an informed speculation . . . only when such is grounded on a factual basis that can be found in the record."' [Citations.]" (People v. Cox (2003) 30 Cal.4th 916, 948.)

No Conflict or Adverse Effect on Performance

We conclude that Allen had no actual or potential conflict that would have compelled his recusal. To establish a conflict under the federal Constitution, the defendant must show that his attorney "'. . . actively represented conflicting interests . . . .'" (Mickens v. Taylor(2002) 535 U.S. 162, 175.) When witnesses are no longer represented by an attorney or his or her office, counsel does "not have any interest in attempting to shield these witnesses from impeachment or to otherwise ensure that their testimony was well-received. [Citation.]" (People v. Clark (1993) 5 Cal.4th 950, 1001.) The record reflects that none of the witnesses who testified at trial were currently represented by Allen or his office. While Allen was prohibited from using confidential information obtained in the course of the prior representations (ibid.), he represented that he possessed no such information. "[Allen], as an officer of the court, was in the best position to assess whether a conflict of interest existed or was likely to arise. [Citation.]" (Ibid.) Allen also represented that the prior representations would not affect his cross-examination of the former clients. Under the circumstances, the court correctly concluded that Allen had no conflict of interest that would interfere with appellant's federal constitutional rights to counsel.

Appellant also fails to demonstrate that the prior representations adversely affected Allen's performance. In making this determination, we inquire "where the record shows that counsel 'pulled his punches,' i.e., failed to represent defendant as vigorously as he might have had there been no conflict. [Citation.]" (People v. Easley (1988) 46 Cal.3d 712, 725.) Appellant's attempt to make this showing "falls far short of an informed speculation grounded in a factual basis that can be found in the record. [Citation.]" (People v. Cox, supra, 30 Cal.4th at p. 950.) While appellant complains that Allen failed to directly accuse Fitzgerald, Gardner, and the Uribe brothers of committing the murders during cross-examination, he fails to offer any evidence supporting such accusations. Allen may also have had a legitimate tactical reason to refrain from leveling accusations that would most certainly be denied. (Id. at pp. 948-949.) Appellant also faults Allen for failing to present evidence that Jesus Uribe had threatened Martinez and Savannah, yet the record does not disclose any such evidence. "Because there is no indication that Allen's representation was undermined by any purported conflict arising from the prior representations, appellant cannot establish that a disabling conflict of interest requires reversal of his conviction under the federal or state Constitutions.

Waiver

A defendant's right to an attorney free of conflicts is subject to waiver. (Alcocer v. Superior Court, supra, 206 Cal.App.3d at pp. 957-958; People v. Mroczko (1983) 35 Cal.3d 86, 109-110.) In order to find such a waiver, "[n]o particular form of inquiry is required, but, at a minimum, the trial court must assure itself that (1) the defendant has discussed the potential drawbacks of joint representation with is attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of joint representation in this case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right. [Citations.]" (People v. Mroczko, supra, at p. 110.)

We conclude that appellant validly waived any conflict of interest his attorney Allen may have had as the result of his prior representation of Fitzgerald and his office's prior representation of other witnesses who testified at trial. As soon as the potential conflict was revealed, attorney Bixby was appointed to advise appellant on the issue. The record reflects that Bixby fully informed appellant of the consequences of the potential conflict and his attendant rights. After it was discovered that Allen had personally represented Fitzgerald in a prior matter, Bixby notified the court that he had gone through each of the steps set forth in Alcocer.^[13] Appellant thereafter repeatedly asserted his wish to keep Allen as his attorney.

Appellant asserts that his waiver cannot be deemed knowing, voluntary and intelligent because the trial judge did not personally go through each of the steps outlined in Alcocer. The record reflects, however, that Bixby went through each of those steps with appellant. Bixby, as an officer of the court, also represented that appellant appeared to understand the consequences of the decision to waive any potential conflict. Moreover, the Alcocer guidelines are advisory. Our Supreme Court has recognized that a waiver of conflict-free counsel "'. . . need not be in any particular form, nor is it rendered inadequate simply because all the conceivable ramifications are not explained.' [Citation.]" (People v. Roldan, supra, 35 Cal.4th at p. 728.) Appellant's complaint that he was not informed of any specific confidential information or offered any explanation as to how that information related to his case is also unavailing. "In determining whether a defendant understands the nature of a possible conflict of interest with counsel, a trial court need not separately explore each foreseeable conflict and consequence. Nor does a defendant's waiver of conflict-free counsel extend only to matters discussed in detail on the record. [Citation.]" (People v. Jones (1991) 53 Cal.3d 1115, 1137.) Rather, the potential consequences of proceeding with counsel need only be "disclosed generally" to the defendant. (Maxwell v. Superior Court (1982 ) 30 Cal.3d 606, 619.)

To the extent appellant asserts that the court failed to obtain valid waivers from all of the public defender's former clients who testified at trial, he lacks standing to assert a violation of any rights other than his own. (People v. Boyer (2006) 38 Cal.4th 412, 444.) Appellant also fails to demonstrate that any confidential information relating to those former clients was divulged, much less that he was prejudiced by its disclosure. (See People v. Clark (1993) 5 Cal.4th 950, 1002, fn. 23 [conflict of interest did not compel reversal where attorney's breach of ethical duties owed to another client did not "work[] to the detriment of defendant"].) We also reject appellant's claim that the court otherwise failed to properly consider the public interest in accepting his waiver. Contrary to appellant's assertion, the court's recognition of his right to the attorney of his choosing in no way undermines "the public interest in maintaining trust in the integrity of judicial proceedings."

II.

Fitzgerald's Identification of Appellant

Prior to trial, appellant moved to exclude Fitzgerald's identification of him as the person who brought Martinez's property to his room, on the basis of unduly suggestive identification procedures. After holding a hearing pursuant to Evidence Code section 402, the court denied the motion.^[14] Appellant contends the court violated his due process rights by admitting this evidence. We conclude otherwise.

The Section 402 Hearing

Detectives Kimberly Graham and David Griffith both testified at the section 402 hearing that Fitzgerald did not recognize appellant or Martinez when he was shown an individual photograph of each of them during the detectives' initial encounter with him on July 20, 2001. The photograph of appellant, which had been taken when he was arrested three days earlier, depicted him with a shaved head and a "Fu Manchu" mustache. According to the detectives, Fitzgerald was merely asked whether he recognized the individual depicted in the photograph; he was not told that it was a photograph of the individual who had been arrested for the murders, nor was it suggested that he was the person who brought the property to his room.

When Fitzgerald was interviewed again six days later, he described the person who brought the property to his room as a six-feet-one-inch-tall man with sideburns who "looks like he was from New Guinea." He also said that someone named "Albert" was with him when this person came to his room. He was then shown a six-pack photographic lineup that contained the same photograph of appellant he had been shown on July 20. Fitzgerald was told that the photographs did not necessarily include the person who brought the property to his room, and that he was not obligated to choose anyone. Fitzgerald initially picked four of the six photographs, including the photograph of appellant, as possibly depicting the person who brought the property to his room. Detective Graham asked Fitzgerald to close his eyes and attempt to visualize the person.^[15] Fitzgerald did so. As soon as Fitzgerald opened his eyes, he circled appellant's photograph and wrote his initials next to it. Detective Graham nevertheless believed that Fitzgerald's initial selection of four photographs rendered his identification of appellant questionable. When Detective Graham interviewed Fitzgerald again on August 7, Fitzgerald reiterated his belief that the photograph he had circled depicted the person who brought the property to his room. He also said, however, that the man had scruffy gray hair and that "Albert" came to his room afterward.

Fitzgerald also identified appellant when he testified at the preliminary hearing.^[16] At that hearing, Fitzgerald claimed the detectives had told him that the photograph he was shown on July 20 was of the person who had been arrested for the murders. He said the detectives told him "they knew how to do confiscating type of things." He also claimed he was told that the man arrested for the murders was depicted in one of the photographs included in the six-pack lineup, and that he recognized the photograph of appellant as the one he had been shown on July 20. He added that he was going to circle the photograph next to appellant's because he could not tell them apart, and that in circling appellant's photograph he "left it open."

At the conclusion of the section 402 hearing, appellant contended that the identification procedures were unduly suggestive because the photograph of him that was shown to Fitzgerald on July 20 was included in the six-pack subsequently shown on July 26. Appellant further argued that the six-pack was suggestive in that only two of the subjects depicted had shaved heads, and that Fitzgerald's identification of him at the preliminary hearing was tainted by the fact that Fitzgerald saw appellant in the courtroom prior to the identification. The court rejected each of these contentions, and accordingly denied the motion.

General Legal Principles

"Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable. [Citations.]" (People v. Yeoman (2003) 31 Cal.4th 93, 123.) "'The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.' [Citation.] In other words, '[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 412.) The defendant bears the burden of demonstrating that the identification procedure was suggestive and unreliable. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)

Appellant's Contentions

Appellant contends that the police engaged in an unduly suggestive procedure by first showing Fitzgerald a single photograph of appellant, and then showing him a six-pack lineup six days later that included the same photograph. The People respond by citing cases recognizing that it is permissible to place a subject in a live line-up after the witness was unable to identify the suspect in photographs. (People v. Wimberly (1992) 5 Cal.App.4th 773, 788-789; People v. Spencer (1972) 22 Cal.App.3d 786, 792, 795.) While those cases are not directly on point, we find them persuasive.

In any event, appellant's claim is essentially foreclosed by the United States Supreme Court's decision in Simmons v. United States (1968) 390 U.S. 377. In Simmons, several bank employees who witnessed a robbery were shown at least six photographs consisting mostly of "group photographs" that included the defendant. Each of the employees was able to identify the defendant from those photographs. Some of the witnesses were shown "indeterminate numbers of pictures" during subsequent interviews and again identified the defendant. (Id. at p. 382.) None of these photographs were admitted at trial. Instead, the government merely offered each of the witnesses' in-court identifications of the defendant. (Ibid.) The Supreme Court concluded that "[d]espite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. . . . [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Id. at p. 384.) The court went on to find that while the procedure at issue in that case "may have in some respects fallen short of the ideal," the procedure was not unduly suggestive because each of the witnesses had ample opportunity to see the suspect and were shown the photographs while their memories were still fresh. (Id. at p. 386.) The court further noted "[t]here is no evidence to indicate that the witnesses were told anything about the progress of the investigation, or that the FBI agents in any other way suggested which persons in the pictures were under suspicion." (Id. at p. 385.)

Here, as in Simmons, the police employed a "less than ideal" procedure in attempting to secure Fitzgerald's identification of a suspect. By showing Fitzgerald the same photograph twice, they increased the danger that the identification would be based on his memory of the photograph rather than his recollection of the person he saw. Rather than showing the same photograph to a witness to aid law enforcement in identifying a suspect and later using the same photograph in a photographic lineup, the better practice would be to use different photographs, albeit of the same person. This procedure would eliminate the suggestion that the identification was of a person depicted in an earlier photograph rather than the actual perpetrator of the crime. In the present case, Fitzgerald had sufficient opportunity to observe the person who came to his room. The detectives who showed him the photographs did not suggest that this person was depicted in them, much less that this person was suspected of committing the murders.^[17] Moreover, unlike the defendant in Simmons, appellant had the opportunity to undermine the reliability of Fitzgerald's photographic identification through cross-examination. While he highlights the various inconsistencies in Fitzgerald's testimony, he fails to appreciate how this evidence would have necessarily undermined the identification in the jury's eyes. "Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." (Manson v. Brathwaite (1977) 432 U.S. 98, 116.)

We also reject appellant's assertion that the six-pack was unduly suggestive because it did not include anyone else who was bald with the same type of mustache. "Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to 'stand out' from the others in a way that would suggest the witness should select him. [Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 367, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107.) Having reviewed the lineup, we see nothing that would cause appellant to "stand out" from the others in a manner that would have drawn Fitzgerald to him. All six of the individuals have mustaches and appear to be Hispanic. While appellant is the only subject who is completely bald, two are almost bald and the others have very short hair. Fitzgerald did not identify any characteristics prior to the identification that were unique to appellant's photograph. Because nothing about appellant's photograph suggested that he was the individual who brought the property to Fitzgerald's room, the fact that he is the only person sporting a Fu Manchu mustache and a bald head does not render the lineup unduly suggestive.^[18]

Appellant also takes issues with the visualization technique that led to the identification. While we agree that the reliability of this technique is questionable, nothing about the procedure suggested which of the photographs Fitzgerald should identify. Because the technique did not render the identification procedure unduly suggestive, its reliability is irrelevant to our determination whether appellant's due process rights were violated. (People v. Ochoa, supra, 19 Cal.4th at pp. 412-413.) To the extent appellant argues it was improper for the detectives to have Fitzgerald circle and initial appellant's photograph, the claim is waived because it was not raised below. In any event, appellant had every opportunity to argue to the jury that the circumstances under which Fitzgerald circled and initialed the photograph rendered the identification unreliable.^[19]

We also conclude that any error in admitting Fitzgerald's identification of appellant would be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. St. Germain (1982) 138 Cal.App.3d 507, 518 [recognizing that Chapman's harmless error standard of review applies to erroneous admission of in-court identification].) Appellant was the last person seen with the victims, and witnesses placed him at the scene around the time of the murders. After the murders, the police found a shirt in appellant's possession that had bleach stains that resembled the irregular tile pattern in the bathtub where the bodies were cleaned with bleach. Along with the shirt was found a pair of bleach-stained sweatpants that Martinez's mother had apparently given her only two days before the murders. Appellant also fought with Martinez shortly before the murders, and believed she was "messing around" with another man. On the morning of the murders, appellant arrived at his parents' house acting strangely and talked about driving away evil spirits. Early that evening, appellant's father came home to find him "in a daze." Appellant also gave the police conflicting accounts regarding his whereabouts on the day of the murders, the time during which someone of appellant's height packed up all of the belongings in Martinez's room and took them next door. When appellant was unable to account for some of his time, he attempted to purchase an alibi for $10,000. Moreover, in his defense appellant failed to present any plausible theory upon which the jury could have found that someone else committed the crimes. In light of this evidence, a reasonable juror could not have entertained a reasonable doubt about appellant's guilt even if Fitzgerald had not positively identified appellant as the person who brought Martinez's belongings to his room.

III.

Wheeler/Batson

Appellant asserts that the trial court erroneously denied his Wheeler/Batson motion challenging the prosecution's use of four peremptory challenges against prospective jurors with Hispanic surnames. We disagree.

The motion was first brought after the prosecution exercised its first and third challenges against Jurors B.M. and S.D., respectively. Appellant contested these challenges on the ground that only 13 of the 74 prospective jurors who remained after death-penalty qualification were Hispanic. The court denied the motion on its finding that appellant had failed to make a prima facie showing of racial discrimination. Appellant renewed his motion after the prosecution exercised its sixth peremptory challenge against Juror A.S. After the court found a prima facie case of discrimination, the prosecutor offered a race-neutral reason for each of the challenges. Specifically, the prosecutor offered that Juror B.M. had stated "he would always look for the best in the defendant at the penalty phase" and was "very pro psychiatric testimony," and believed that the death penalty was arbitrary and that rich people usually got away with it. Among the reasons offered for exercising the challenge against Juror S.D. (and it is not clear whether she is actually Hispanic) were that she worked as a coordinator for an agency of which Fitzgerald and other witnesses were potential clients, worked with psychologists, stated that she was "definitely neutral" on the death penalty, and said she did not like to judge. As to Juror A.S., the prosecutor provided that she was a "social worker type" who was "adamantly anti-death penalty" (and had challenged her for cause on that basis) and said it was "hard to say" whether she could follow the court's instructions on the death penalty. The court found that the prosecution had provided race-neutral reasons for each of the challenges, and accordingly denied the motion.

Appellant renewed the motion again after the prosecution exercised its ninth peremptory challenge against Prospective Juror P.O. The prosecutor gave numerous reasons for dismissing P.O., including her statements that her son "had been targeted just because of his being Hispanic" and that she, too, had been the victim of racial profiling. The court found these reasons legitimate and accordingly denied the motion.

Appellant contends the court erred in failing to state its reasons for finding the prosecutors' explanations credible. He also asserts for the first time on appeal that a "comparative analysis" of the challenged jurors with the unchallenged jurors demonstrates that the prosecutor acted with racial bias. Appellant further claims that the proffered reason for dismissing Prospective Juror P.O. demonstrates "an outright, blatant exercise in racial discrimination . . . ." We reject each of these contentions.

"Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. [Citations.] In Johnson v. California (2005) 545 U.S. 162 . . ., 'the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant's are made. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]"' [Citations.] [] Moreover, as Johnson explains, 'a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.' [Citation.] At step three, 'the trial court "must make 'a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily. . . ." [Citation.]"' [Citation.] A prosecutor's reasons for exercising a peremptory challenge 'need not be sufficient to justify a challenge for cause.' [Citation.] 'Jurors may be excused based on "hunches" and even "arbitrary" exclusion is permissible, so long as the reasons are not based on impermissible group bias.' [Citations.] '[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor's race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.' [Citation.] Inquiry by the trial court is not even required. [Citation.] 'We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]' [Citation.]" (People v. Watson (2008) 43 Cal.4th 652, 670-671.) We review the court's final ruling for substantial evidence. (Id. at p. 671.)

Appellant fails to demonstrate that the court erred in denying the motion. As we have noted, the court was not required to give specific reasons for its findings that the prosecution offered legitimate race-neutral grounds for the challenges. (People v. Watson, supra, 43 Cal.4th at p. 670.) Appellant's attempt to engage in a comparative analysis of the challenged and unchallenged prospective jurors for the first time on