Thomas

A jury convicted defendant Keith Tyson Thomas of the first degree murder of Francia Young (Pen. Code, § 187, subd. (a)), 1 of kidnapping her for the purpose of robbery (§ 209, subd. (b)), of robbing her (§ 211), of forcibly raping her (§261, subd. (a)(2)), and of forcibly sodomizing her (§ 286, subd. (d)). As to each of these offenses, the jury found true sentence enhancement allegations that a principal was armed with a firearm (§§ 12022, subd. (a), 12022.3, subd. (a)), and, as to the rape and sodomy charges, that defendant acted in concert with an accomplice, Henry Glover, Jr. (§§ 264.1, subd. (a), 286, subd. (d)(1)), and that defendant kidnapped Young for the purpose of committing these sexual offenses (§ 667.8, subd. (a)). In conjunction with the murder verdict, the jury found true four special circumstance allegations: that the murder of Francia Young was committed during her kidnapping for the purpose of robbery (former § 190.2, subd. (a)(17)(ii)), robbery (former § 190.2, subd. (a)(17)(i)), rape (former § 190.2, subd. (a)(17)(iii)), and unlawful sodomy (former § 190.2, subd. (a)(17)(iv)). The jury found defendant did not personally use a firearm in committing these…

The majority concludes that the trial court’s ruling allowing the prosecution to pursue the firearm personal-use allegations against defendant Keith Tyson Thomas and to argue defendant was the actual killer was harmless beyond a reasonable doubt. (Maj. opn., ante, at p. 934.) Assuming arguendo the ruling was erroneous, I agree.

I write separately to explain that my concurrence is with the understanding that nothing in the majority’s discussion of this issue suggests the prosecutor in this case committed misconduct, either in charging defendant with personal use of a firearm or arguing he was the shooter. “[T]he prosecutor has the discretion to decide which offenses to charge. The courts do not generally supervise these ‘purely prosecutorial function[s].’ ” (People v. Ceja (2010) 49 Cal.4th 1, 7 [ 108 Cal.Rptr.3d 568 , 229 P.3d 995 ]; see Hambarian v. Superior Court (2002) 27 Cal.4th 826, 840 [ 118 Cal.Rptr.2d 725 , 44 P.3d 102 ] [“the prosecutor . . . has broad discretion over ... the decisions of whom to charge and what charges to bring . . .”].) “[S]o long as the prosecutor has probable *951 cause to believe that the accused committed an offense defined by statute, the decision…

I. FACTUAL BACKGROUND

A. Guilt Phase 1. Prosecution case a. Crimes against Francia Young In 1992, Francia Young, a 25-year-old African-American woman, lived with her mother in Oakland, California. Young worked in San Francisco as a computer analyst. She typically commuted to work by driving her car, a black Ford Mustang, to the MacArthur Bay Area Rapid Transit (BART) station, parking there, and taking the train to work. On December 8, 1992, Young left for work around 7 a.m. She was wearing a long

As to the remaining crimes against Young, the trial court sentenced defendant to total terms of imprisonment of (1) four years for the robbery, (2) 24 years for the rape, and (3) 20 years for the sodomy. As to the crimes related to the Flennaugh robbery, the court sentenced defendant to total terms of imprisonment of (1) five years for the robbery, (2) 10 years for each of the assaults on the police officers, and (3) two years for possession of a firearm by a felon.

2 raincoat and had with her a multicolored umbrella she had borrowed from her mother. Young usually returned home around 5:30 in the evening, but she did not come back that night. About 6:00 p.m. on December 8,…