Simon

In November 1999, a Riverside County jury found defendant Richard Nathan Simon guilty of the first degree murders of Vincent Anes and Sherry Magpali (Pen. Code, § 187, subd. (a)), the second degree murder of Michael Sterling with the personal use of a firearm (ibid.), the rape of Magpali (§261, subd. (a)(2)), and the kidnapping of Magpali (§ 207, subd. (a)). The jury further found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)), that Simon committed Anes’s murder while engaged in the commission of a robbery (former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A)), and that Simon committed Magpali’s murder while engaged in the commission of a robbery, kidnapping, and rape (id., subd. (a)( 17)(i)—(iii), now subd. (a)(17)(A)—(C)).

The jury was unable to reach a decision at the first penalty trial, so the court declared a mistrial. The court then empaneled a new jury, which fixed the penalty as death after a second penalty trial. The trial court automatically reviewed the verdict (§ 190.4, subd. (e)), declined to modify it, and sentenced Simon to death.

This appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow,…