# People v. Alvarez

> California Supreme Court · December 5, 1996 · 14 Cal. 4th 155

URL: https://www.frixlaw.com/law-library/cases/1160457

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. MANUEL MACHADO ALVAREZ, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** December 5, 1996
- **Citations:** 14 Cal. 4th 155; 58 Cal. Rptr. 2d 385; 96 Daily Journal DAR 14567; 926 P.2d 365; 96 Cal. Daily Op. Serv. 8805; 1996 Cal. LEXIS 6514
- **Precedential status:** Published
- **Opinion:** Opinion by Mosk
- **Judges:** Mosk
- **Cited by:** 613 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1160457

## Opinion text

Opinion
MOSK, J.
This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment including a sentence of death rendered under the 1978 death penalty law
(id.,
§ 190 et seq.). For the reasons that follow, we shall affirm.
I. Introduction
In the Sacramento Superior Court, defendant, Manuel Machado Alvarez, and a codefendant, Belinda Denise Ross, were charged in an amended information by the Sacramento District Attorney on behalf of the People, as follows.
In count 1, defendant and Ross were each charged with murdering Allen Birkman. (Pen. Code, § 187, subd. (a).) For death eligibility, they were each alleged to have committed the offense in the course of a robbery
(id.,
§ 211) or an attempted robbery
(id.,
§§211, 664)—the so-called felony-murder-robbery special circumstance.
(Id.,
§ 190.2, former subd. (a)(17)(i), as added by § 6 of Prop. 7, approved by initiative, Gen. Elec. (Nov. 7, 1978); accord, Pen. Code, § 190.2, present subd. (a)(17)(A).) For enhancement of sentence, defendant was alleged to have personally used a deadly or dangerous weapon, viz., a knife.
(Id.,
§ 12022, subd. (b).)
In count 2, defendant and Ross were each charged with robbing Birkman. For enhancement of sentence, defendant was alleged to have personally used
*175
a deadly or dangerous weapon, viz., a knife. For the same purpose, he was also alleged to have intentionally and personally inflicted great bodily injury. (Pen. Code, former § 12022.7, as amended by Stats. 1979, ch. 145, § 17, p. 341; see Pen. Code, present § 12022.7 [making no reference to the
intentional
infliction of great bodily injury].)
In count 3, defendant was charged with stealing a vehicle belonging to Edwin Glidewell, viz., a 1975 Chevrolet Camaro. (Veh. Code, former § 10851, as amended by Stats. 1986, ch. 1214, § 1, pp. 4293-4294, repealed by terms of Stats. 1989, ch. 930, § 11, p. 3260; accord, Veh. Code, present § 10851.)
In count 4, defendant was charged with raping Sandra S. (Pen. Code, § 261, former subd. (2), as amended by Stats. 1986, ch. 1299, § 1, pp. 4592-4593; accord, Pen. Code, § 261, present subd. (a)(2).)
In count 5, defendant was charged with robbing Greta Slatten. For enhancement of sentence, he was alleged to have personally used a deadly or dangerous weapon, viz., a blunt instrument.
For enhancement of sentence, defendant was separately alleged to have been convicted of a serious felony, viz., voluntary manslaughter (Pen. Code, § 192, subd. (a)) with personal use of a deadly weapon, prior to his commission of the offenses identified in counts one, two, four, and five, which were themselves serious felonies.
(Id.,
§ 667, subd. (a).)
For enhancement of sentence, Ross was separately alleged to have been convicted of a serious felony, viz., robbery with personal use of a firearm (Pen. Code, § 12022.5), prior to her commission of the offenses identified in counts one and two, which were themselves serious felonies.
Defendant and Ross each pleaded not guilty to the charges and denied the allegations.
Trial as to guilt for defendant and Ross jointly was by jury. On Ross’s motion in the midst of the proceedings pursuant to Penal Code section 1118.1, the superior court ordered the entry of a finding that the felony-murder-robbery special circumstance alleged against her was not sustained because the evidence was insufficient. The jury rendered a guilty verdict against defendant for the murder of Birkman and fixed the degree at the first; together therewith, it made an express finding that he committed the offense in the course of a robbery or attempted robbery, and that he acted with intent to kill; it made a further express finding that he personally used a deadly
*176
weapon. It rendered a guilty verdict against Ross as an accessory to the murder of Birkman, but not for the crime itself. In addition, it rendered a guilty verdict against defendant for the attempted robbery of Birkman, but not for the completed crime; together therewith, it made an express finding that he personally used a deadly weapon; it made a further express finding that he intentionally inflicted great bodily injury, and an implied finding that he did so personally. Similarly, it rendered a guilty verdict against Ross for the attempted robbery of Birkman, but not for the completed crime. It next rendered a guilty verdict against defendant for the theft of Glidewell’s vehicle. It also rendered a guilty verdict against him for the rape of Sandra S. Finally, it rendered a guilty verdict against him for the robbery of Slatten; together therewith, it made an express finding that he personally used a deadly weapon. Waiving a jury trial on the question, Ross admitted that she had previously been convicted of the alleged serious felony of robbery with personal use of a firearm.
The superior court proceeded to render judgment against Ross: It imposed a sentence of imprisonment comprising a total term of eight years and eight months—three years as an accessory to the murder of Birkman; eight months for the attempted robbery of the same victim (after sixteen months were stayed); and an additional five years for the serious felony enhancement.
Trial as to penalty for defendant was by the same jury. The panel rendered a verdict of death.
After defendant waived a jury trial on the question, the superior court found that he had previously been convicted of the alleged serious felony of voluntary manslaughter with personal use of a deadly weapon.
Denying, among other motions, an application by defendant for modification of the verdict of death under Penal Code section 190.4, subdivision (e), the superior court proceeded to render judgment as follows: For the murder of Birkman, it imposed a sentence of death, staying a sentence of imprisonment for a term of one year for the enhancement for personal use of a deadly or dangerous weapon. For the other offenses, it imposed a sentence of imprisonment comprising a total term of seventeen years and eight months— eight months for the theft of Glidewell’s Camaro (after sixteen months were stayed); six years for the rape of Sandra S.; five years for the robbery of Slatten, with an additional year for the enhancement for personal use of a deadly or dangerous weapon; and an additional five years for the serious felony enhancement; a term of three years for the attempted robbery of Birkman, with an additional year for the enhancement for personal use of a deadly or dangerous weapon, was stayed. It also ordered payment of a
*177
restitution fine in the amount of $10,000, and a crime prevention fine in the amount of $10.
II. Facts
For convenience, we shall set out the facts as disclosed at the guilt phase and then the facts as disclosed at the penalty phase.
A.
Guilt Phase
The People presented the jury with a story to the following effect.
In November 1986, defendant was released on parole after serving a term of imprisonment for what would be revealed to be convictions for voluntary manslaughter and assault with a deadly weapon in the Los Angeles Superior Court in 1982. He was bound to Los Angeles by the conditions of his parole.
In March 1987, in violation of such conditions, defendant moved from Los Angeles to Sacramento. Over the following months, he lived, on and off, with Leslie Colyer and Neetelfer Hawkins. He spent the major part of his time obtaining and consuming drugs and alcohol.
On May 12, late at night, defendant was socializing outside an apartment building. Present also was Sandra S. She lived in one of the units with her lover and her son. She was then working as a prostitute. Defendant was drunk, and was vomiting. He made a sexual advance on her, but was repulsed. She eventually returned to her apartment, and went to bed.
On May 13, about noon, Sandra S. awoke. Her lover and her son were not at home. She had a “real bad feeling.” Looking toward the foot of the bed, she saw defendant. He was standing with his zipper open, and was masturbating. She said, “Oh, God, no.” In a voice that was firm and serious, he responded, “Oh, God, yes.” She called for her lover. With coldness and calculation, he said, “He can’t help you now.” He then began to rape her. Percy Spence, who was one of her friends, walked in. He asked, “Are you having a date?” She yelled, “No, no[,] no, no, it’s not.” Defendant stated, “Yes, it is.” Several times, she repeated, “No, it’s not.” Spence said, “Oh, man, don’t be doing that,” and ran out. When defendant was finished, he put into his pants a long knife in a sheath, which he had evidently brought to the scene. Anthony Simpkins, another of Sandra S.’s friends, had arrived by this time. As he was entering, he passed Spence. Simpkins asked, “[Wjhat’s happening[?]” Spence answered, “[0]h, just let it be.” Sandra S. ran to Simpkins almost hysterical, and told him defendant had raped her. Defendant fled. As he did so, he proceeded up the street in the direction of Edwin
*178
Glidewell, with whom he was acquainted. Glidewell owned a 1975 Chevrolet Camaro, which was parked nearby with the key in the ignition. Defendant jumped into the driver’s seat, started the engine, and took off. Glidewell gave chase, but failed in the effort.
On May 15, defendant met Ross as she was cashing a welfare check she had received earlier that day. With him at the wheel of Glidewell’s Camaro, they immediately set out to obtain and consume drugs and alcohol. They continued to do so over the days that followed. In the course of their wanderings, they visited, among others, defendant’s friend Neetelfer Hawkins and a friend of Ross named Gail Patton.
On May 17, late in the morning, defendant asked Ross to drive Glidewell’s Camaro as he rode as a passenger. She entered a shopping center. He directed her to an office of the Golden 1 Credit Union. She parked, and he exited. At 11:28 a.m., Allen Birkman, a civilian identification technician for the Sacramento Police Department, withdrew $60 from his wife’s account at the credit union’s automatic teller machine. Defendant accosted Birkman; a struggle ensued; defendant stabbed Birkman in the heart. Ross pulled out of the parking space, and defendant managed to jump in. They made good their escape. Birkman called for help. Within seconds, a passerby named Charles Kosobud came to his aid. Birkman was holding his right hand to his chest, and had blood flowing through his fingers; he had a wallet in his left hand; he was swaying. Steadying him, Kosobud asked if they had robbed him; Birkman responded, “No, but they tried.” Kosobud asked who. Birkman responded, “Two blacks.” (Ross is an African-American. Defendant is, in his own words, “Spanish and Islander,” meaning “[a] native [Cuban].”) Birkman soon collapsed onto the ground. Officer Calvin Lim of the Sacramento Police Department arrived at the scene. Birkman was already receiving emergency medical aid. Within several minutes, he was placed in an ambulance for transport to a hospital; Lim rode along. Birkman had difficulty breathing, and appeared to be in pain; he said he felt numbness or tingling in his body. Lim asked if he knew who had attacked him; he responded, “[a] male black, approximately six foot tall”—like defendant— who “got into a Camaro.” Within several more minutes, they arrived at the hospital.
Sometime before noon, Ross and defendant reached Gail Patton’s apartment, which was not far from the Golden 1 Credit Union. Ross parked Glidewell’s Camaro nearby. She entered the apartment with a long knife and a sheath. She appeared frightened. After wiping the weapon, she told Patton to give it to defendant. Defendant entered some minutes later. He appeared normal. Patton gave him the long knife and the sheath. Police officers
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approached Patton’s apartment. Defendant and Ross apparently directed Patton not to say anything. At the apartment’s entrance, the officers told Patton that they were investigating the incident at the Golden 1 Credit Union. They asked whether she knew anything about Glidewell’s Camaro. She answered no. They departed. She told defendant to go. He did so. He left behind the long knife and the sheath. He also left behind Glidewell’s Camaro.
About 1:30 p.m., Greta Slatten, who was 78 years old, drove to a convenience store in a 1987 Ford Taurus she had recently bought. The store happened to be about two-thirds of a mile from Patton’s apartment. There was no other automobile in the parking lot. There was only one other person—defendant. Slatten caught sight of him, and remained in her car with the doors locked. He went to a public telephone. She then exited the vehicle with her purse and keys, locked the doors, entered the store, and made a purchase. As she went to return to her automobile, she passed defendant, who was still at the telephone. She then lost consciousness. After she came to, she found that she was in a hospital, and had suffered injuries that required suturing with 20 stitches, prevented her from opening her mouth, and blackened the left side of her face from her hairline down through her neck. Defendant had taken her car, her keys, and her purse, and had fled.
On May 18, Birkman died as a result of the stab wound he suffered to the heart. The wound could have been inflicted by the long knife that defendant left behind at Patton’s apartment.
That day or soon thereafter, Leslie Colyer spoke with defendant over the telephone. She had earlier been approached by the police, who had inquired as to his whereabouts and advised they were seeking him in connection with a homicide. In the course of the telephone conversation, she told him that the victim of the homicide was a police officer.
On May 27, defendant was arrested in Mississippi and jailed. He was apprehended at the wheel of Slatten’s Taurus; Charles Robinson, who was hitchhiking, was a passenger. In the automobile was found a second long knife in a sheath. The next day, Robinson was also arrested and jailed. Defendant and Robinson shared a cell. Defendant told him that “he had killed a police officer in California”—referring evidently to Birkman. He was later returned to California.
The tale that defendant told was different from the People’s. Testifying on his own behalf and introducing other evidence, he denied he had raped Sandra S.: he said she had consented, at least in part in order to obtain some
*180
cocaine he offered. He denied he had stolen Glidewell’s Camaro: he said Glidewell had given him the automobile as security for a debt he incurred when he bought about $400 worth of cocaine from him on credit. He denied he had robbed or murdered Birkman: he said he was elsewhere at the time of the attack, and was the victim of mistaken identity. He denied he had robbed Slatten: again, he asserted alibi and misidentification; he said he had gotten possession of her Taurus the day she was robbed by giving some cocaine in trade to a young man who called himself “J.R.” He generally denied he had ever had any knife in his possession.
The tale that Ross told was also different from the People’s. Testifying on her own behalf and introducing other evidence, she did not deny defendant had robbed or murdered Birkman; rather, she denied she had possessed the requisite mental state—she said she did not even suspect what he had evidently intended, but had accompanied him out of fear.
B.
Penalty Phase
For the penalty of death, the People relied on the evidence introduced at the guilt phase relevant to the circumstances of the capital offense, which they understood to include the attempted robbery and murder of Birkman, the rape of Sandra S., and the robbery of Slatten.
1
In addition, the People presented evidence of three prior felony convictions. First, in 1982, in the Los Angeles Superior Court, defendant was convicted of voluntary manslaughter with personal use of a deadly weapon. Second, at the same time and in the same court, he was convicted of assault with a deadly weapon. Third, in 1983, in the San Luis Obispo Superior Court, he was convicted of escape from prison without force or violence.
The People also presented evidence of four instances of criminal activity, beyond the circumstances of the capital offense, that involved the use or attempted use of force or violence or the express or implied threat to use force or violence. The first and second instances comprised the circumstances surrounding the voluntary manslaughter and assault with a deadly weapon convictions. Late one night in 1981, a man ran into a small liquor store in Hollywood. In pursuit was defendant. The man was unarmed. Defendant was brandishing a long knife in his right hand. The man stopped, and put his hands up in front of him for protection. With his left hand, defendant pulled the man’s hands down, said, “Chinga su madre,” stabbed him fatally through the throat, and then withdrew the blade. Knife in hand, he started to move on one of the store’s clerks. He halted when another of
*181
the clerks pulled out a shotgun and told him to stop. He then fled. The third and fourth instances consisted of separate attacks on fellow jail inmates during the pendency of the present proceedings, one in 1987 and the other in 1988, in each of which he punched a victim who could not defend himself.
For life imprisonment without possibility of parole, defendant presented evidence relevant to his background and character. He was bom in Cuba around 1960, and was raised there. As a young child, he suffered a significant injury to his head, which may have contributed to a condition that later showed itself as perhaps epilepsy, and also lost his mother to death. Thereafter, he lived an unstable life, and was subjected to abuse and neglect, especially at the hands of a woman with whom his father set up house. He began to exhibit problem behavior. He came to the United States in the so-called “Mariel Boatlift” of 1980. He was apparently detained at camps including Fort Chaffee in Arkansas. He went to Richmond, Virginia, in 1981, under the sponsorship of a married couple with small children. He lived with the family about six weeks. He displayed kindness and generosity, but also anger and immaturity. He made his way to California later that year. There ensued the crimes referred to above. For various reasons, social as well as personal, he did not successfully assimilate into American society. It was opined that he suffered from conditions including “profound emotional immaturity” and “extreme culture shock.” Nevertheless, he was capable of love and helpfulness. For example, he had shown, and continued to show, such qualities in his dealings with Neetelfer Hawkins and with her mother and her disabled son.
Defendant also presented evidence responsive to that introduced by the People. Thus, he attempted to disprove one of his attacks on the two jail inmates. He went into the circumstances surrounding the prison escape conviction, showing, among other things, that, with two other Spanish-speaking prisoners, he had essentially walked away from what was little more than an “honor camp” (albeit after somewhat elaborate planning), offered no resistance to the correctional officers who effected the capture, and even helped them by serving as an interpreter for his two companions. He also went more deeply into the circumstances surrounding the voluntary manslaughter conviction, revealing in its course that he killed the victim apparently in revenge for the latter’s burglary of the residence of a man who was his lover.
III. Discussion
Defendant challenges the judgment as to guilt, death eligibility, and penalty. We shall consider his attack point by point.
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A.
Guilt
Defendant makes several claims going to guilt. As will appear, none proves to be meritorious.
1. Motion to Suppress
Prior to trial, defendant moved the superior court to suppress certain evidence pursuant to Penal Code section 1538.5, including the second long knife and its sheath. At bottom, he claimed that the evidence in question was the fruit of a stop at a vehicle checkpoint in Mississippi, and that the stop at issue was violative of his right under the Fourth Amendment to the United States Constitution to be secure against unreasonable searches and seizures. After an evidentiary hearing, the superior court denied the motion.
At the guilt phase, the second knife and its sheath were introduced into evidence.
Defendant contends that the superior court erred by denying his motion to suppress.
“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [f| In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [zc], funds have already been approved for this purpose some time ago, to Cuba. [^Q We’ve had numerous assurances from [the] Cuban government that we would be allowed to go there. [*]D We started our attempts to get down there to gather information regarding [defendant’s] background at the time that we were first assigned to this courtroom, ... in February . . . .” “[W]e had thought we’d have this problem licked . . . about a month ago. [1 In fact, we got the people all the way to Mexico City before we found out that the Cuban government decided to throw a roadblock in our way again
To accommodate his schedule, Judge Lewis suggested a date of July 10. Asked his position, Prosecutor Marlette stated, inter alia, that “I have a general objection to a delay of that long, and I realize how much or how little weight that will carry in light of the defense concerns.”
Judge Lewis inquired: “Let me ask, when do you expect to get some sort of a definitive answer on whether you’re going to get into Cuba?”
Attorney Holmes responded: “This thing has literally been going on for weeks now. [<J[] I think Mr. Mayorga has been in almost daily phone contact with these people, at least the last two weeks, and at one point I thought I
*228
could have predicted the date they were going to say yes, yes you can have your special visa and away you go. [*]Q At this point I really think they’re doing everything they can do [to] discourage us from getting in at all. I can’t really answer your question, and it could be tomorrow, could be three months from now.”
Attorney Gable added: “Your Honor, ... we really can’t offer the Court any kind of definitive deadline or time limit on when we might hear something from the Cuban government. [*][] We’re kind of hoping since they know this really is a penalty phase of the trial, and it really is happening, that they might be moved to grant us access to records and individuals there in Cuba
Thereupon, Judge Lewis set the date for July 10. In so doing, he offered: “[I]f there’s anything you feel I can do to assist the defense, maybe just by simply stating that the case will proceed on July the 10th, regardless of whether you are allowed to get into Cuba or not, may be the most beneficial thing the Court can do.” Attorney Gable replied: “If we could ever get some sort of response from the Cuban government to even know that they’re alive down there, we would certainly come to the Court, and if that was something that they wanted, but as it is right now, it’s just a question of going through, quote, diplomatic channels and see what we can do.”
On June 16, again meeting with Prosecutor Marlette and Attorneys Holmes and Gable, Judge Lewis rescheduled the commencement of the penalty phase to June 26 on his own motion, in large part because he believed that July 10 was too far away. In response to an invitation, Attorney Gable stated that he was “prepared to make an offer of proof in camera regarding the necessity of continuing the start of the defense presentation of mitigating circumstances until the 10th” or “until at least... the 6th or so.” Asked subsequently whether he would be able to proceed on July 5, he answered that he believed he would. Judge Lewis then ordered the People’s case to open on June 26 and defendant’s to open on July 5. Attorney Gable stated for the record that, “as a result of the roadblocks that have been placed in the way of us getting to Cuba,” “I don’t want the Court to feel that I’m representing and guaranteeing right now that the [5th] is solid and we’re going to be ready to go . . . .” He reiterated that he was prepared to make an offer of proof in camera. Judge Lewis asked him to do so.
In camera, Attorney Gable represented in substance that he and Attorney Holmes were continuing to experience “difficulty securing passage to Cuba” for Mayorga and Myers “to gather relevant mitigating evidence,” and were exploring alternative means to obtain such evidence. Judge Lewis asked,
*229
“What type of evidence do you want to bring from Cuba?” He answered, “[T]he type of evidence that we would love to bring from Cuba is the actual testimony of family members and records from schools that [defendant] has attended, and any friends that he had back there, ffl] It’s just the typical kind of evidence that we would be presented [sic] in any penalty phase of a capital case, the evidence of past good acts, of love and affection shown to parents, and also of the type of childhood that [defendant] had . . . .” He added: “We have no real hopes of being able to subpoena, if you will, people from Cuba to come and testify here, but what we had intended to do all along was send a team down to Cuba, armed with video recorders, and interview these people, and the hope was that we would conduct a sufficiently reliable interview that we would be able to present the interview at the penalty phase under the authority of
Green
v.
Georgia
(1979) 442 U.S. 95, 97 [ 60 L.Ed.2d 738, 741 , 99 S.Ct. 2150 ]—which held in a
per curiam
opinion that, “under the facts of [that] case,” the exclusion of certain evidence “constituted a violation of the Due Process Clause of the Fourteenth Amendment,” even if it was barred by the state’s hearsay rule, because it “was highly relevant to a critical issue in the punishment phase of the trial” and “substantial reasons existed to assume its reliability." Judge Lewis expressed his view that “you’d have great difficulty having the Court deem reliable, just a statement by an ordinary person, particularly a family member or a relative who obviously has an interest in the case.”
On June 26, the penalty phase commenced. The People opened their case. Later that same day, having been granted leave to reopen to call a possible witness, they rested. At the close of the session, Judge Lewis asked: “Does the defense feel any need to have any further discussions in camera regarding your case?” Attorney Gable answered: “Not at this time .... [^Q I think that the prosecutor is well aware that we’re trying to gather information from [defendant’s] homeland, and in fact, it appears that although we may not be able to send people down there ourselves, that we have made some contacts in Cuba, to where they can go and locate some of the family . . . .”
On July 5, with the People not seeking to reopen their case and stating again that they rested, defendant opened his case. At the close of the session, Attorney Gable informed Judge Lewis and Prosecutor Marlette that he and Attorney Holmes had an “expert” “going to Cuba” “Might around the 10th.” Judge Lewis called for “a more thorough offer [of] proof.” Attorney Gable responded: “The expert is an expert in the field of cultural anthropology with a specific expertise in the area of Cuba, having received a math or science degree at the University of Havana in cultural anthropology, and this individual has conducted extensive interviews with [defendant] already and has now the basis to obtain additional information in Cuba, regarding [defendant’s] upbringing, and will be offering her opinions as an expert qualified in
*230
cultural anthropology.” Judge Lewis commented: “[A]t some point, we’re gonna have to disclose a certain amount to the prosecution to make it so that I can make some predetermination as to whether or not it’s even necessary to have this witness, because somewhat for cost, but more so for time and timing, it[’]s useless to send somebody to Cuba and postpone this trial for an entire week and a half just to find out this person is not going to be able to testify . . . .” Attorney Gable replied: “I can just say that in the past I’ve used psychologists, sociologists and anthropologists to testify regarding the facets of the background of the defendant, and that’s what it’s being offered for. HQ In other words, the expert can offer an opinion regarding the individual, based upon background information, of course, . . . and that’s the type of evidence that this witness would be offering.” Judge Lewis inquired further in camera. Attorney Gable offered to make the “expert” available the next day for in camera examination. Judge Lewis accepted.
On July 6, Judge Lewis conducted a hearing in camera. Taking the witness stand on voir dire was Gail McGarrity. McGarrity testified, inter alia, that she was a candidate for the degree of doctor of philosophy in anthropology at the University of California at Berkeley; she specialized generally in cultural anthropology and specifically in “ethno medicine [sz'c], ethno psychiatry [szc], . . . nutritional anthropology and medical anthropology” in Latin America; she had lived and studied in Cuba, and was fluent in Spanish; she had undertaken to compile defendant’s social history; to that end, she had interviewed defendant on a number of occasions; because he had “memory gaps,” she needed to communicate with persons who knew him as a child and youth in Cuba; moreover, she needed to do so in person because, “given the fact that Cuba and the United States have such poor relations, it’s not easy to telephone there or get letters back and forth”; having lived and studied in Cuba, “it’s very easy for me to move around” there “and not have to go through officials channels, ’cause that’s the most difficult way,” especially for an American; she would attempt to leave for Cuba on July 10 or 12, and to return a week to 10 days later, but was uncertain of success; she would pose as a tourist, lest she arouse any suspicion on the part of the Cuban government that she was “up to something political”; she would “travel[] with an investigator who would have a video camera.” Attorney Gable requested to continue her appearance as a witness in defendant’s case until July 24. Judge Lewis expressed concern about the delay. Attorney Gable stated that he and Attorney Holmes considered the Cuban trip important, and had been attempting to send investigators there for a long time. Judge Lewis asked, “What’s the cost involved?” Attorney Gable answered, “That’s already been approved . . . .” Judge Lewis told him to “see what you can get done,” and put off a decision on his request to continue McGarrity’s appearance.
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Later on July 6, Judge Lewis met with Attorneys Holmes and Gable in the presence of Prosecutor Marlette. Attorney Gable stated that the “expert”— meaning McGarrity—had “a confirmed flight to Mexico City on the 11th, the tour is set, ... the flight [is] to leave from Mexico City on the 15th, the return to Mexico City into the United States is on the 22nd . . . .” Judge Lewis asked, “Why is she going down to Mexico on the 11th, . . .is she going to be paid this whole time, and if so, why is she going down five days or four days before?” Attorney Gable answered, “It’s a tour package, that’s how you have to do it. [‘JO You have to get there three days in advance, you have to go to the Cuban Embassy and get your passports in order, that’s just the way that they set it up.”
On July 10, Judge Bond conducted a hearing in camera with Attorneys Holmes and Gable to inquire into the trip to Cuba by Mayorga and Myers for which she had authorized defendant to incur expenses.
Judge Bond acted on her own motion, in response to a communication by Judge Lewis, who she said “was very unsatisfied with the need to go to Cuba”: “He . . . wanted to know whether I had authorized any trip or not, and I told him that I had. But then he told me that this trip had been changed rather substantially since . . . when I authorized it.” Specifically, she had learned from him that an “anthropologist,” namely, McGarrity, was to go in place of Mayorga and Myers: “I didn’t approve that, and you didn’t come in and ask for any change in approval.”
Attorney Gable attempted to explain: Mayorga and Myers “got all the way to Mexico City and were turned back by the Cuban government for reasons that had to do, I think, primarily with the fact that . . . they advised them what they were actually going down there for”; “since that time they have been trying to get back down there, . . . and all to no avail”; they were each now “persona non grata”; in the meantime, he and Attorney Holmes hired McGarrity to compile defendant’s social history; they subsequently decided to send her to Cuba with an interpreter with the given name of Patricia—her surname was later identified as Santivanias—who had been recommended by Myers ; “apparently the [main] interpreter that we have for [defendant],” Carmen Krewson, “got in a snit over the fact that she couldn’t go to Cuba,” and “went to Gladys Cook,” who was the coordinator of Spanish-English interpreters in the interpreter’s office, “and told her some tale . . . that these people were just going down there to go on vacation”; “[t]he first thing I knew about it, I got a call from the newspapers, apparently Gladys Cook called all the newspapers, called the district attorney, and this is all supposed to be confidential, I might add, and apparently went and talked to Judge Lewis ex parte.”
*232
Judge Bond commented: “[W]hat was alarming, I think, to Judge Lewis, and the reason he called me just to have me handle the matter was, as I understand it, they were going to go to Mexico and they’re going to be there for four or five days.”
Attorney Gable responded: “No. And this is the thing that I think was prompted by” interpreters Krewson and Cook. He went on to explain that “you have to spend at least two days” in Mexico City “to acquire the visa from the Cuban Embassy.”
Judge Bond then asked, “What connection is there with some kind of vacation tour . . . [?]”
Attorney Gable responded, “It’s not exactly a vacation tour. It’s a package put together to take people who are interested in going to Cuba . . . .” He made plain that the tour in question was simply a “cover[]” under which McGarrity and Santivanias would be able to enter Cuba. He also made plain that they would be able to enter Cuba
only
under such a “cover”: “That’s the only way we can do it.”
Judge Bond stated: “[W]hat you’re really telling me is that they’re going to go in under a subterfuge. I never authorized that. I did authorize, initially, Mr. Mayorga and Mr. Myers to go there aboveboard for the purpose for which they’re being sent. I did not authorize anybody to create some sort of subterfuge to get into a country which we do not have any relations [with] on false pretenses and then go off and do investigations.” “I never authorized anyone to do any subterfuge to get into another country.” “I did not authorize anyone ever to join up with a tour for some purpose which is not in fact the true purpose in order to gain entrance to Cuba so they could then go off and do their own investigation.”
Judge Bond went on: “Now the way you have this set up, it’s a subterfuge, and I just don’t think the Court or the state ought to be a party to that. You’re talking about an international incident here. You’re not talking about . . . going into Georgia. You’re talking about going into a foreign country, with which the United States does not have diplomatic relations, under a guise that’s not true. And ... I just can’t authorize that. I’m not going to do that." “[W]hen I authorized this originally ... I was within that ambit of authority to give you authorization to do it straightforwardly, but I am not going to allow this Court or the state to be drawn into what is in effect a subterfuge in a foreign government. [*]□ I mean, you’re talking about an international incident, potentially, there. What if these people get arrested while they’re there? What kind of protection are they going to have?" “It’s
*233
not up to the Superior Court of Sacramento County to start making foreign policy decisions for the United States.”
Judge Bond reiterated, “[Y]ou had an obligation to come to me and tell me this has changed because what I authorized is not what you were intending to do. I did not authorize you to go in in some surreptitious manner.”
Attorney Gable replied, “I couldn’t do that because I was going to be a little concerned about making the Court a party.”
Judge Bond stated, “[T]his Court can’t be party to some sort of subterfuge.”
Attorney Gable responded, “I know that. And I wouldn’t ask you to be party to some kind of subterfuge, either.”
Judge Bond proceeded to withdraw authorization to incur expenses for a trip to Cuba; “I can’t authorize you to do it the way you’re going to do it
In the wake of Judge Bond’s ruling, defendant moved Judge Lewis to recuse the interpreter’s office on the ground that it had committed misconduct by improperly disclosing information about the trip to Cuba by McGarrity and Santivanias. Defendant also moved Judge Lewis to declare a mistrial and, later, to preclude the People from seeking the death penalty and to sentence him to a term of imprisonment for life without possibility of parole. For purposes of these motions, defendant moved Judge Lewis to order an evidentiary hearing, and also to recuse himself and Prosecutor Marlette, and to appoint new counsel for him in place of Attorneys Holmes and Gable, on the ground that each of the identified persons might be called to testify at such a hearing as a witness. For these same purposes, defendant assumed that Judge Bond’s ruling withdrawing authorization to incur expenses for a trip to Cuba was not erroneous. After an evidentiary hearing at which he presided and in which Attorneys Holmes and Gable and Prosecutor Marlette participated, Judge Lewis denied all the motions. In the course thereof, he determined, inter alia, that neither he nor Judge Bond had committed judicial misconduct. He also determined that, even if the interpreter’s office had committed misconduct through an improper disclosure, defendant was not entitled to the relief he sought. Moreover, he barred him from using the evidentiary hearing as an investigative tool to identify which interpreter or interpreters, if any, actually made any improper disclosure.
Interpreter Krewson did not further assist defendant during the proceedings. McGarrity and Santivanias were unable to make a trip to Cuba. By
*234
means including a telephonic interview with defendant’s father in Cuba, McGarrity compiled his social history. In the presence of the jury, she testified to her opinion, as a cultural anthropologist, on matters concerning his background and character in Cuba, and expressed the view that he suffered from conditions including “profound emotional immaturity” and “extreme culture shock.” In so doing, she stated that she had been unable to go to Cuba to conduct an investigation and hence had been unable to corroborate certain information on which she relied.
Defendant now presents a number of contentions relating to his application for authorization to incur expenses for a trip to Cuba.
At the threshold, defendant claims that Judge Bond erred by withdrawing authorization to incur expenses for the trip to Cuba by McGarrity and Santivanias.
An appellate court reviews a trial court’s ruling on an application for authorization to incur expenses to prepare or present a defense for abuse of discretion. (See, e.g.,
People
v.
Daniels
(1991) 52 Cal.3d 815, 851 [ 277 Cal.Rptr. 122 , 802 P.2d 906 ];
People
v.
Mattson
(1990) 50 Cal.3d 826, 847 [ 268 Cal.Rptr. 802 , 789 P.2d 983 ].)
We find no such abuse here. Judge Bond was not unreasonable in authorizing the “aboveboard” trip to Cuba by Mayorga and Myers, of which she had been informed, for the purpose of compiling defendant’s social history: The end was proper and so were the means. But neither was she unreasonable in withdrawing authorization for the “surreptitious” trip to Cuba by McGarrity and Santivanias, of which she had not been informed: although the end remained proper, the means had become otherwise, threatening harm to international relations and also to the two travelers. Defendant argues in substance that, at least on the facts of a case like this, a judge may not withdraw authorization for improper means. Because he did not offer such an argument below—indeed, Attorney Gable agreed that a judge could do so—he may not offer any to that effect here. He also argues that Judge Bond did not in fact withdraw authorization for improper means, but did so for her own improper reasons. The record on appeal is otherwise.
Even if error had occurred, it would not entail reversal. It is the general rule for error under California law bearing on the penalty of death—which includes the one asserted here—that reversal requires prejudice and prejudice in turn requires a reasonable possibility of an effect on the outcome under
People
v.
Brown
(1988) 46 Cal.3d 432 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ].
(People
v.
Ashmus, supra,
54 Cal.3d at p. 983 ;
People
v.
Gordon ,
*235
supra,
50 Cal.3d at p. 1267.) No such possibility appears as a result of the withdrawal of authorization to incur expenses for a trip to Cuba. McGarrity herself stated that she was uncertain of success. Hence, it is merely conjectural whether McGarrity and Santivanias would have made it to Cuba,
and if so,
whether they would have discovered more favorable information than what McGarrity had already obtained, as through her telephonic interview with defendant’s father in Cuba,
and if so,
whether they would have made it back to the United States in a timely fashion.
32
Defendant also claims, in effect, that the interpreter’s office committed misconduct by improperly disclosing information about the trip to Cuba by McGarrity and Santivanias. It is improper for an interpreter to disclose information reflecting “privileged communications between counsel and client.” (Cal. Standards Jud. Admin., § 18.3(c).) Judge Lewis impliedly assumed that at least one interpreter had indeed improperly disclosed information of this sort. We shall expressly do the same.
We cannot conclude, however, that any improper disclosure would require reversal. We believe that a defect of this sort is subject to the general rule for error under California law that reversal requires prejudice. When, as here, it bears on the penalty of death, prejudice requires a reasonable possibility of an effect on the outcome. No such possibility appears. Attorneys Holmes and Gable had themselves disclosed to Judge Lewis and Prosecutor Marlette a significant part of the information concerning the trip to Cuba by McGarrity and Santivanias. Although revealing varied misconceptions and resentments, the interpreter who we assume made an improper disclosure disclosed nothing of substance other than the names of the travelers. That fact, however, was inconsequential. Indeed, while they were still pursuing the trip to Cuba by Mayorga and Myers, Attorneys Holmes and Gable had themselves disclosed
their
names.
We do not ignore the fact that Judges Lewis and Bond initially looked with disfavor on Attorneys Holmes and Gable as a result of what we assume to be the improper disclosure by at least one interpreter of information about the trip to Cuba by McGarrity and Santivanias. We agree with defendant that the judges appear to have falsely believed that the attorneys were “misusing court-approved funds.” We also agree that they may consequently have doubted their “credibility.” For example, Judge Lewis admitted that he had
*236
thought that “it seemed like this could be a boondoggle,” and might have told Judge Bond “something like this sounds like a county paid vacation.”
But the disfavor of Judges Lewis and Bond toward Attorneys Holmes and Gable passed as the judges learned of the difficulties the attorneys faced. Judge Lewis told them that he recognized that they found themselves in a “very frustrating” situation, and that he did “not doubt[] the good faith of either of you.” For his part, Judge Lewis stated: “[F]rom now what I understand about the situation,” “I’m of the opinion that you have done nothing wrong . . . .” “Your credibility before this Court is just as high as it has ever been, which is high, I must say . . . .”
Neither do we ignore the fact that what we assume to be the improper disclosure by at least one interpreter of information about the trip to Cuba by McGarrity and Santivanias might have had a “chilling effect”
(Barber
v.
Municipal Court
(1979) 24 Cal.3d 742, 753 [ 157 Cal.Rptr. 658 , 598 P.2d 818 ]) on communications between defendant and Attorneys Holmes and Gable, and indeed on their relationship. But even a reasonable possibility of an effect on attorney-client communications or even the attorney-client relationship—which we do not discern here—does not amount to a reasonable possibility of an effect
on the outcome.
33
Defendant next claims that Judge Lewis erred by determining that neither he nor Judge Bond committed judicial misconduct by communicating between themselves about his application for authorization to incur expenses for a trip to Cuba.
34
Any such judicial misconduct would not entail reversal. A defect of this sort is subject to the general rule for error under California law that reversal requires prejudice.
(People
v.
Anderson
(1987) 43 Cal.3d 1104, 1133-1134 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ].) When, as here, it bears on the penalty of death, prejudice requires a reasonable possibility of an effect on the outcome. No such possibility appears. “The fundamental. . . harm” threatened in this situation is “the disclosure of potentially significant information to the prosecution.”
(Id.
at p. 1134.) There was no disclosure of this kind.
*237
Even before Judges Lewis and Bond communicated between themselves about defendant’s application for authorization to incur expenses for a trip to Cuba, Attorneys Holmes and Gable had themselves disclosed its existence and substance to Prosecutor Marlette. Defendant argues that the communications in question had a “tendency ... to deprive [him] of the right to challenge ‘questionable facts or opinions’ . . . .” The tendency, however, did not result in a deprivation. Judges Lewis and Bond themselves brought the communications to light. Defendant then exercised his “right,” and mounted a successful “challenge.” It is true that the communications between Judges Lewis and Bond resulted in the withdrawal of authorization to incur expenses for a trip to Cuba. But, as explained above, such withdrawal of authorization did not affect the outcome within a reasonable possibility.
35
Defendant then claims that Judge Lewis erred by denying his motion to recuse himself from his other motions relating to his application for authorization to incur expenses for a trip to Cuba.
As a general matter, an appellate court reviews a trial court’s ruling on a recusal motion for abuse of discretion. (Cf. 2 Childress & Davis, Federal Standards of Review,
supra,
§ 12.05, pp. 12-35 to 12-40 [setting forth the standard of review under federal law].)
No such abuse appears. Judge Lewis was not unreasonable in declining to recuse himself. Certainly, he was not required to do so. Defendant argues to the contrary. He asserts that Judge Lewis had “personal knowledge of disputed evidentiary facts concerning the proceeding” (Code Civ. Proc., § 170.1, subd. (a)(1))—including whether he and Judge Bond communicated about his application for authorization to incur expenses for a trip to Cuba—and hence might, and indeed did, serve as a “de facto” witness. Judge Lewis cannot be deemed to have had “personal knowledge of
disputed
evidentiary facts”: he removed such facts from dispute by resolving
*238
them for present purposes in defendant’s favor, as through his implicit concession that he and Judge Bond communicated about the application.
36
Defendant also claims that Judge Lewis erred by barring him from using the evidentiary hearing as an investigative tool to identify which interpreter or interpreters, if any, actually made any improper disclosure about the trip to Cuba by McGarrity and Santivanias.
As a general matter, an appellate court reviews a trial court’s ruling as to the conduct of a hearing for abuse of discretion. (See
Erreca’s
v.
Superior Court
(1993) 19 Cal.App.4th 1475, 1494 [ 24 Cal.Rptr.2d 156 ]; cf. 1 Childress & Davis, Federal Standards of Review,
supra,
§ 4.08, pp. 4-50 to 4-61 [setting forth the standard of review under federal law].)
Again, no such abuse appears. Judge Lewis was not unreasonable in barring defendant from using the evidentiary hearing as an investigative tool to identify which interpreter or interpreters, if any, actually made any improper disclosure. Judge Lewis’s concern was whether defendant was entitled to the relief he sought—not with whether any interpreter deserved discipline. Defendant argues that, had he been permitted to proceed as he wished, he might have been able to ensure against the possibility of a similar improper disclosure in the future. He may well be right. But he shows only that Judge Lewis might not have been unreasonable if he had made a different decision. He does
not
show that he was unreasonable in making the decision he did. This is especially true since Attorneys Holmes and Gable expressed a firm belief that it was interpreters Krewson and Cook who were to blame, and presumably took appropriate precautions against them for the future.
Defendant then claims that Judge Lewis erred by failing to require Prosecutor Marlette to testify, sua sponte, as to his receipt of what we assume to be the improper disclosure by at least one interpreter of information about the trip to Cuba by McGarrity and Santivanias. We disagree. Defendant’s premise is that Judge Lewis was under a duty to demand such testimony, even in the absence of a request. It is unsupported.
37
Underlying all the foregoing points urged by defendant is a broad and somewhat undefined claim of violation of the right to the assistance of
*239
counsel granted him by the Sixth Amendment to the United States Constitution.
A defendant’s Sixth Amendment right to the assistance of counsel includes a right to
effective
assistance. (E.g.,
People
v.
Ledesma, supra,
43 Cal.3d at p. 215.) For present purposes, “counsel” may embrace an attorney’s agent, such as an interpreter. (See
Chacon
v.
Wood
(9th Cir. 1994) 36 F.3d 1459, 1463-1465 .)
To establish ineffective assistance of counsel entitling him to relief, a defendant must demonstrate that counsel performed deficiently under an objective standard of professional reasonableness and thereby caused prejudice under a test of reasonable probability of an effect on the outcome. (E.g.,
People
v.
Ledesma, supra,
43 Cal.3d at pp. 215-218.)
Defendant expressly attempts to establish ineffective assistance of counsel. He fails. We shall assume for argument’s sake that there was deficient performance on the part of at least one interpreter. (There would be no basis for a similar assumption about either Attorney Holmes or Attorney Gable.) We cannot, however, find prejudice. There is no reasonable probability of an effect on the outcome as a result of the withdrawal of authorization to incur expenses for a trip to Cuba. That is because, as explained above, there is no reasonable possibility: with McGarrity herself stating that she was uncertain of success, it is merely conjectural whether McGarrity and Santivanias would have made it to Cuba,
and if so,
whether they would have discovered substantially more favorable information than what McGarrity had already obtained, as through her telephonic interview with defendant’s father in Cuba,
and if so,
whether they would have made it back to the United States in a timely fashion. Neither is there any reasonable probability of an effect on the outcome on any other basis.
A defendant’s Sixth Amendment right to the assistance of counsel also includes a right to
loyal
assistance. (See, e.g.,
People
v.
Bonin
(1989) 47 Cal.3d 808, 834 [ 254 Cal.Rptr. 298 , 765 P.2d 460 ] [holding that included in the right to counsel “is ‘a correlative right to representation that is free from conflicts of interest . . .’ ”].) For these purposes too, “counsel” may embrace an attorney’s agent, such as an interpreter.
To establish “disloyal” assistance of counsel entitling him to relief, a defendant must demonstrate that counsel served an interest other than his (see
Cuyler
v.
Sullivan
(1980) 446 U.S. 335, 350 [ 64 L.Ed.2d 333, 347-348 ,
*240
100 S.Ct. 1708 ] [considering the right to conflict-free counsel];
People
v.
Bonin, supra,
47 Cal.3d at pp. 834-835 [same]), and that, in so doing, “counsel ‘pulled his punches,’ i.e., failed to represent [him] as vigorously as he might have” otherwise
(People
v.
Easley
(1988) 46 Cal.3d 712, 725 [ 250 Cal.Rptr. 855 , 759 P.2d 490 ] [same]).
Defendant does not expressly attempt to establish “disloyal” assistance of counsel. He speaks much about an “invasion[] of the defense camp” by the state
(Barber
v.
Municipal Court, supra,
24 Cal.3d at p. 760 (cone, and dis. opn. of Manuel, J.); accord,
United States
v.
Mastroianni
(1st Cir. 1984) 749 F.2d 900 , 906 [“intrusion”];
United States
v.
Seale
(7th Cir. 1972) 461 F.2d 345, 364 [same]), which assertedly requires automatic reversal or at least raises a presumption of prejudice. He does so inappropriately. There was no true “invasion” or “intrusion” into the “defense camp.” Rather, as he himself recognizes at times, there was simply a “leak” therefrom. Beneath his talk about “invasion” and “intrusion,” he impliedly attempts to establish “disloyal” assistance of counsel. Here, too, he fails. We shall assume for argument’s sake that at least one interpreter served an interest other than his. (Here, too, there would be no basis for a similar assumption about either Attorney Holmes or Attorney Gable.) We cannot, however, find any “pulling” of “punches.” The record on appeal is simply barren of any indication thereof.
2. Ineffective Assistance of Counsel
In his case, defendant called Gail McGarrity to the witness stand. As noted, she testified to her opinion, as a cultural anthropologist, on matters concerning his background and character in Cuba, and expressed the view that he suffered from conditions including “profound emotional immaturity” and “extreme culture shock.” In so doing, she stated that she had been unable to go to Cuba to conduct an investigation and hence had been unable to corroborate certain information on which she relied. As she was relating certain out-of-court statements on direct examination by Attorney Gable, Prosecutor Marlette made a hearsay objection and requested the superior court to instruct the jury that it could not consider any such statement for its truth. Attorney Gable declared that he was not offering statements of that sort for that purpose, but solely to reveal the basis of her opinion. He also declared that he did not object to the instruction requested. The superior court largely overruled the hearsay objection, and instructed the jury that it could not consider any out-of-court statement she related for its truth, but only as a basis for her opinion. Attorney Gable completed the direct examination. Prosecutor Marlette then subjected her to cross-examination. After she left the stand, he moved the superior court to “withdraw” the instruction
*241
it had given at his request, and to instruct the jury instead that it could consider any out-of-court statement she related for its truth. The superior court declared that it would do so only if defense counsel stipulated. They refused. It effectively denied the motion.
Complaining of defense counsel’s refusal to stipulate to Prosecutor Marlette’s motion, defendant contends that he was provided with ineffective assistance of counsel in violation of the Sixth Amendment. We disagree.
Defendant does not demonstrate either deficient performance or prejudice. As to the absence of deficient performance: Evidently, Prosecutor Marlette made his motion in order to prevent the jury from drawing any inference favorable to defendant or adverse to the People based on McGarrity’s inability to go to Cuba to conduct an investigation and her consequent inability to corroborate certain information on which she relied. Without offending any objective standard of professional reasonableness, defense counsel could have refused to stipulate, and apparently did refuse to stipulate, in order to allow the jury to draw precisely such an inference. Of course, they had to pay a price for their refusal: They had to give up an opportunity to use the out-of-court statements she related for their truth. The price, however, was not too high: the statements in question had little independent mitigating weight, coming as they did largely from defendant himself, who was affected by self-interest. As to the absence of prejudice: There is no reasonable probability of an effect on the outcome. By giving up an opportunity to use these statements for their truth, they gave up little.
38
3. Prosecutorial Misconduct
In the course of his summation, the prosecutor made comments characterizing defendant, including remarks to the effect that he was a “creep,” was worse than a “predator[]” because he “enjoy [ed] . . . unnecessary violence,” was “your worst nightmare, . . . society’s worst nightmare.” Defendant objected to such comments as “disparaging.” Finding in substance that the
*242
remarks were not “[ijnflaming the jury,” the superior court overruled the objection.
Defendant contends in substance that the superior court erred by effectively determining that the prosecutor did not commit misconduct.
As a general matter, an appellate court reviews a trial court’s ruling on prosecutorial misconduct for abuse of discretion.
There was no such abuse here. The superior court was not unreasonable in effectively determining that the prosecutor did not commit misconduct. For it was not unreasonable in impliedly finding that he did not use any method of persuasion that may be deemed deceptive or reprehensible, including inflammatory comments. Such remarks as those quoted above did indeed characterize defendant in negative terms. Although perhaps unnecessarily colorful, they were consistent with the evidence. Hence, they were not improper. (See, e.g.,
People
v.
Berryman, supra,
6 Cal.4th at p. 1076.) Defendant argues that “the prosecutor in fact was testifying on behalf of his recommendation of death.” The assertion is unsupported. It may be rejected out of hand.
4. Request for an Instruction Not to Consider Guilt Phase Evidence
In the course of the penalty phase, the superior court discharged two of the jurors who had sat on the jury when it rendered its verdicts and made its findings at the guilt phase, and put two alternates in their place. By stipulation of the People and defendant, it discharged one because of unavoidable scheduling conflicts. By necessity, it discharged the other because of death.
Defendant moved the superior court to instruct the jury not to consider the guilt phase evidence. He relied on Penal Code section 190.4, subdivision (d), which provides that, “[i]n any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial . . . shall be considered at any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.” The superior court refused.
Defendant contends that the superior court erred thereby.
Against a claim of this kind, which involves the determination of applicable legal principles, an appellate court reviews a trial court’s instruction independently.
After such review, we find no error. Penal Code section 190.4, subdivision (d), declares in substance that, if the trier of fact at the penalty phase is the
*243
same as that at the guilt phase, it
must
consider the guilt phase evidence. Here, the trier of fact at the penalty phase was the same as that at the guilt phase. It was a jury. Indeed, it was the
same
jury: it was not rendered otherwise by the substitution of jurors with alternates. (See
People
v.
Green
(1971) 15 Cal.App.3d 524, 528 [ 93 Cal.Rptr. 84 ].) It therefore had to consider the guilt phase evidence. Had it been instructed not to, as requested by defendant, error would have been committed.
5. Instruction on Bias and Prejudice
Defendant contends that the superior court erred by delivering an instruction that he asserts was “virtually identical” to the “no pity” instruction held to be erroneous in
People
v.
Easley
(1983) 34 Cal.3d 858, 875-876 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ]: “ ‘As jurors, you must not be influenced by pity for a defendant. . . .’ ”
Here too, against a claim that involves the determination of applicable legal principles, an appellate court reviews a trial court’s instruction independently.
Here too, we find no error. In accordance with the pattern instruction set out as CALJIC No. 8.84.1 (1989 new) (5th ed. pocket pt.), the superior court told the jury, in pertinent part, that “[y]ou must neither be inf[l]uenced by bias or prejudice against the defendant . . . .” This is the instruction that defendant challenges. It plainly survives his attack. For it plainly does not admonish against pity. It is true that the reporter’s transcript originally presented the language in question as “pity as or prejudice.” But it was subsequently corrected to replace the meaningless “pity as” with “bias.”
6. Instruction on the “Circumstances of the Crime”
In accordance with the pattern instruction set out as CALJIC No. 8.85 (5th ed. 1988)—and ultimately with Penal Code section 190.3—the superior court told the jury that, in choosing between the penalty of death and life imprisonment without possibility of parole, it should be guided by certain factors, if applicable, including “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding . . . .”
Defendant contends that the superior court erred by delivering its instruction on the “circumstances of the crime.”
Here too, against a claim that involves the determination of applicable legal principles, an appellate court reviews a trial court’s instruction independently.
*244
Here too, we find no error. Penal Code section 190.3 impliedly requires a superior court to instruct “on any factor that is applicable on the record of the individual case”
(People
v.
Marshall
(1990) 50 Cal.3d 907, 932-933 [ 269 Cal.Rptr. 269 , 790 P.2d 676 ], italics omitted)—which always and everywhere includes the “circumstances of the crime.” The superior court here complied.
39
Defendant argues that the superior court should have clarified its instruction on the “circumstances of the crime” (1) to specify that the “crime” referred to was the capital offense involving the murder of Allen Birkman, and (2) to state
40
that its “circumstances” did not embrace the rape of Sandra S., which was assertedly unrelated. Had he desired such a clarification, he should have requested it of the superior court. He made no request of this sort below. Hence, he may not raise a complaint here.
41
7. Application for Modification of the Verdict of Death
Defendant made an application for modification of the verdict of death under Penal Code section 190.4, subdivision (e). After a hearing, the superior court denied the request.
Defendant contends that the superior court erred thereby.
We review a superior court’s ruling on a verdict-modification application independently. (E.g.,
People
v.
Berryman, supra,
6 Cal.4th at p. 1106.)
After such review, we find no error. The superior court did all it was required to do. That is to say, it effectively “review[ed] the evidence”; “consider[ed], [took] into account, and [was] guided by the aggravating and mitigating circumstances”; “ma[d]e a determination” that “the jury’s findings and verdicts” were not “contrary to law or the evidence presented”;
*245
“state[d] on the record the reasons for [its] findings,” and also “set forth the reasons for [its] ruling” and “directed] that they be entered on the Clerk’s minutes” (Pen. Code, § 190.4, subd. (e)).
In arguing to the contrary, defendant makes a “formal” challenge. He attacks on four fronts.
First, defendant asserts that, before making its ruling on his verdict-modification application, the superior court read a probation report, and thereby failed to anticipate our statement in
People
v.
Lewis
(1990) 50 Cal.3d 262, 287 [ 266 Cal.Rptr. 834 , 786 P.2d 892 ] that the “preferable procedure” is not to do so. But we presume that it was not improperly influenced by the report. (E.g.,
People
v.
Berryman, supra,
6 Cal.4th at p. 1106.) Our presumption is not rebutted by anything in the record on appeal.
Second, defendant asserts that, in making its ruling on his verdict-modification application, the superior court undertook to independently determine whether the penalty of death was appropriate, and did in fact so determine, instead of simply proceeding to assess whether the jury’s choice was contrary to the law or the evidence. He is right in stating that such an assessment is required and that an independent determination of this sort is not called for. (E.g.,
People
v.
Berryman, supra,
6 Cal.4th at pp. 1105-1106.) He is wrong, however, in implying that he has any cause for complaint. For if we assume, as he claims, that the superior court undertook to independently determine that the penalty of death was appropriate, and did in fact so determine, we must conclude that it necessarily found that the jury’s choice was not contrary to the law or the evidence.
Third, defendant asserts that, in making its ruling on his verdict-modification application, the superior court “review[ed] the evidence” (Pen. Code, § 190.4, subd. (e)) in an improper manner. He says that it was required to, but did not, “employ the same type of analysis the jury would have done [sic] under the instructions.” He fails to provide any support for the existence of such a requirement. We find none. To the extent that he maintains that it could not consider the evidence of the rape of Sandra S. or the robbery of Greta Slatten, he is incorrect. Indeed, in his verdict-modification application, he expressly conceded that it could. Correctly so. The Sandra S. rape and the Slatten robbery were each relevant to one or the other of two issues material to the question of penalty under Penal Code section 190.3, viz., the “nature and circumstances of the present [capital] offense”—if it was deemed related thereto—or the “presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or
*246
violence or which involved the express or implied threat to use force or violence”—if it was not so deemed.
42
Fourth, defendant asserts that, in making its ruling on his verdict-modification application, the superior court was not sufficiently specific in the “reasons” it “state[d]” and “set forth” (Pen. Code, § 190.4, subd. (e)). It was. The proof is apparent on the face of the record on appeal: the reporter’s transcript contains six pages of “reasons,” and the clerk’s transcript incorporates them by reference.
In addition to his “formal” challenge, defendant makes a “substantive” challenge. He attacks on only a single front.
Defendant asserts that the superior court’s ruling on his verdict-modification application is unsound as a matter of law. He says that the evidence is insufficient to support the finding of the felony-murder-robbery special circumstance, on which death eligibility rests. We have concluded to the contrary. (See,
ante,
at pp. 22S-226.)
43
8. Effect of the “Three Strikes and You’re Out” Laws
Defendant contends that each of the two so-called “Three Strikes and You’re Out” laws exempts him from the death penalty and thereby renders unauthorized the sentence of death that the superior court imposed on him under the 1978 death penalty law.
While this appeal was pending, section 667 of the Penal Code was amended by the Legislature to establish a sentencing scheme for fixing the term of imprisonment for any person convicted of a felony who had previously been convicted of one or more specified felonies (Stats. 1994, ch. 12, § 1), effective March 7, 1994
(id.,
§ 2). This is the first Three Strikes law. Subsequently, section 1170.12 was added to the Penal Code by the voters to establish a similar scheme (initiative measure Prop. 184, § 1, approved at Gen. Elec. (Nov. 8, 1994)), effective November 9, 1994 (Cal. Const., art. II, § 10, subd. (a)). This is the second Three Strikes law.
44
Defendant’s argument is as follows: Penal Code sections 667 and 1170.12 each establish a sentencing scheme for fixing the term of imprisonment for
*247
any person convicted of a felony who had previously been convicted of one or more specified felonies; each scheme is exclusive; as a result, each supersedes the 1978 death penalty law; each would have applied to him, inasmuch as he was convicted of five felonies in the present proceeding and had previously been convicted of the specified felony of voluntary manslaughter, if he had committed the five felonies on or after its effective date; each should be applied retroactively to his benefit as mitigatory.
We are not persuaded. At least one crucial step in defendant’s argument is unsound. It is true that Penal Code sections 667 and 1170.12 each establish a sentencing scheme for fixing the term of imprisonment for any person convicted of a felony who had previously been convicted of one or more specified felonies. It does not follow, however, that either supersedes the 1978 death penalty law. For, contrary to defendant’s assertion, neither is “exclusive”: each declares itself to “apply” not exclusively, but rather
“in addition to
any other . . . punishment provisions which may apply” (Pen. Code, §§667, subd. (e), 1170.12, subd. (c), italics added)—including those of the 1978 death penalty law. (Cf.
People
v.
Williams
(1995) 40 Cal.App.4th 446, 457-458 [ 46 Cal.Rptr.2d 730 ] [rejecting a similar argument as to Penal Code section 667 for different reasons].)
45
IV. Disposition
For the reasons stated above, we conclude that we must affirm the judgment.
It is so ordered.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
Appellant’s petition for a rehearing was denied February 19, 1997.
1
See footnotes 41 and 42,
post,
and accompanying text.
2
To the extent that decisions of sister states are to the contrary (see, e.g.,
Com.
v.
Amaral
(1986) 398 Mass. 98 [ 495 N.E.2d 276 ];
State
v.
One 1987 Toyota Pickup
(1989) 233 Neb. 670 [ 447 N.W.2d 243 ];
Simmons
v.
Com.
(1989) 238 Va. 200 [ 380 S.E.2d 656 ]; cf.
State
v.
Kirk
(1985) 202 N.J.Super. 28 [ 493 A.2d 1271 ] [based on the state constitutional counterpart to the Fourth Amendment]), they prove unpersuasive in light of the authorities cited in the text.
3
In denying defendant’s motion to suppress, the superior court impliedly determined that the search of Slatten’s Taurus was not independently violative of his rights under the Fourth Amendment. On appeal, he does not claim that it was. If he did, he would fail.
4
Defendant claims in substance that, because the superior court committed error under the confrontation clause of the Sixth Amendment to the United States Constitution, it thereby committed error under the confrontation clause of article I, section 15 of the California Constitution. In the text, we have rejected his Sixth Amendment point as not preserved for review and as legally unsupported. Here, we reject his article I, section 15 point on the same basis.
Defendant also claims in substance that the superior court’s error under the Sixth Amendment’s confrontation clause entails error under the Eighth Amendment’s cruel and unusual punishments clause. We have found no Sixth Amendment error. Hence, we find no Eighth Amendment error.
5
Defendant claims in substance that, because the superior court committed reversible error under California law by denying his severance motion, it thereby committed reversible error under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did not commit error under California law, reversible or otherwise.
6
Defendant claims in substance that, because the superior court committed reversible error under California law by denying his motion for separate trials, it thereby committed reversible error under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did
not
commit any error under California law.
In
People
v.
Pinholster
(1992) 1 Cal.4th 865, 933 [ 4 Cal.Rptr.2d 765 , 824 P.2d 571 ], we stated: “ ‘After trial, of course, the reviewing court may nevertheless reverse a [judgment] where, because of the [joint trial], a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.’ ” No such unfairness occurred here.
7
Defendant claims in substance that, because the superior court committed reversible error under California law by denying his motion to limit physical restraints, it thereby committed reversible error under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did
not
deny the motion and hence did
not
commit any error under California law.
To the extent that defendant claims that the superior court erred by subjecting him, or continuing to subject him, to any or all physical restraints
after its ruling on his motion,
he has not preserved the point for review. He had to make a motion against such restraints. (See
People
v.
Tuilaepa
(1992) 4 Cal.4th 569, 583 [ 15 Cal.Rptr.2d 382 , 842 P.2d 1142 ], affd.
sub nom. Tuilaepa
v.
California
(1994) 512 U.S. 967 [ 129 L.Ed.2d 750 , 114 S.Ct. 2630 ].) He did not do so. Insofar as he complains about the
visibility
of such restraints, he will not be heard. On that score, he has only himself to blame.
8
At the outset, defendant maintains that his
Wheeler!Batson
claim must be resolved in his favor on the ground that the record on appeal is not adequate to permit meaningful review. The deficiency of which he complains is the absence of certain questionnaires, which were completed by prospective jurors, then lodged with the superior court, subsequently lost by its clerk’s office, and finally determined by the superior court to be beyond reconstruction. A criminal defendant is indeed entitled to a record on appeal that is adequate to permit meaningful review. That is true under California law.
(People
v.
Howard
(1992) 1 Cal.4th 1132, 1165 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ].) It is true as well under the United States Constitution—under the Fourteenth Amendment generally, and under the Eighth Amendment specifically when a sentence of death is involved.
(People
v.
Howard, supra,
1 Cal.4th at p. 1166.) The record on appeal is inadequate, however, only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal. (See
id.
at pp. 1165-1166.) It is the defendant’s burden to show prejudice of this sort.
(Id.
at p. 1165.) Defendant attempts to carry this burden, but does not succeed. He simply does not show that the absence of the questionnaires is prejudicial to his ability to urge his
Wheeler/Batson
claim—or any other. Indeed, material from the now lost items survives in the reporter’s and clerk’s transcripts through quotation and paraphrase.
9
We note in passing that an appellate court independently reviews a trial court’s conclusion on whether the prosecutor stated adequate neutral reasons for the peremptory challenges in question: It amounts to the resolution of a pure question of law (see
U.S.
v.
Bishop, supra,
959 F.2d at p. 821, fn. 1 )—whether, as stated in the text, the reasons for the strikes were “explanation[s]” “connecting . . . specific [prospective] juror[s] to the facts of the case,” and were not mere “surrogate[s]” or “proxies]” for group membership
(id.
at p. 826). On such review, we agree with the superior court that the prosecutor succeeded.
10
Defendant claims in substance that, because the superior court committed reversible error by denying his motions under
Wheeler
and
Batson ,
it thereby committed independently reversible error under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did
not
commit any error under
Wheeler
or
Batson .
11
We note in passing that, although defendant was precluded from using evidence of Sandra S.’s prior misdemeanor prostitution convictions for impeachment, he could, and did, use evidence of her work as a prostitute for that very purpose. Strictly speaking, evidence of prior misdemeanor convictions themselves is not relevant for impeachment, but rather the misconduct underlying such convictions
(People
v.
Wheeler, supra,
4 Cal.4th at p. 299)—and then only if it involves “moral turpitude”
(id.
at p. 295).
12
Defendant claims in substance that, because the superior court committed reversible error under California law by granting the People’s motion, it thereby committed reversible error under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In the text, we have rejected the assertion that the superior court committed error under California law.
13
Defendant claims in substance that, because the superior court committed reversible error under California law by granting the People’s motion, it thereby committed reversible error under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In the text, we have rejected the assertion that the superior court committed error under California law.
14
To the extent that defendant claims that the superior court erred by denying his motion and by overruling his objection
on such grounds as that Colyer’s testimony was irrelevant and, if relevant, unduly prejudicial,
he has not preserved his point for review. He did not comply with the general rule requiring a “specific” and “timely” objection below, except as to hearsay. No exception covers his noncompliance. In any event, he fails on the merits. The testimony had a tendency in reason to prove a disputed fact bearing on a material issue, viz., the identity of Birkman’s killer: in admitting he had killed a “police officer,” he effectively admitted he had killed Birkman. Further, the testimony cannot be considered insufficiently probative in light of, inter alia, the risk to the fairness of the proceedings or the reliability of the outcome. (Evid. Code, § 352.) Any such risk was nullified by the superior court’s admonition that Birkman was not a police officer and that his homicide was the only one at issue.
Defendant may be understood to argue that
irrelevant
evidence—such as he now asserts Colyer’s testimony to be—is, by that very fact,
hearsay
evidence. That is not the case. Evidence is hearsay if it is offered in the form of an out-of-court statement to prove what it states. By contrast, evidence is irrelevant if it has no tendency in reason to prove or disprove a disputed fact bearing on a material issue; it need not be offered in the form, or for the purpose, specified for hearsay.
Defendant may also be understood to argue that Colyer’s testimony somehow undermined the superior court’s admonition that Birkman was not a police officer and that his homicide was the only one at issue. Not at all. It merely, and properly, allowed or supported an inference that, in admitting he had killed a “police officer,” he effectively admitted he had killed Birkman.
15
Defendant claims in substance that, because the superior court committed error under California law by ruling as it did, it thereby committed error under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did
not
commit error under California law.
16
At oral argument, defendant attempted to raise a claim that, in the proceedings recounted in the text, defense counsel provided ineffective assistance, apparently in violation of his rights under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. He “assert[ed] the point perfunctorily. We deny it in the same fashion.”
(People
v.
Ashmus
(1991) 54 Cal.3d 932, 1011, fn. 29 [ 2 Cal.Rptr.2d 112 , 820 P.2d 214 ].)
17
Defendant claims in substance that, because the superior court committed error under the Evidence Code by failing to do what he asserts it should have done sua sponte, it thereby committed error under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and also under article I, section 15 of the California Constitution. As explained in the text, the superior court did
not
commit error under the Evidence Code.
18
Underlying defendant’s argument seems to be a concern that, if a party introduces relevant evidence favorable to his opponent, he may be doing so in the hope that it will be used by the jury to draw a forbidden inference. A limiting instruction, however, can prevent such an eventuality. No instruction of this sort was sought by defendant. No complaint may therefore be raised.
19
Again, a limiting instruction could have prevented such an eventuality. No instruction of this sort was sought by defendant. No complaint may therefore be raised.
20
Yet again, a limiting instruction could have prevented such an eventuality. No instruction of this sort was sought by defendant. No complaint may therefore be raised.
Defendant claims in substance that, because the superior court committed error under California law by ruling as it did, it thereby committed error under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did
not
commit error under California law.
To the extent that defendant claims that the superior court erred under either California law or the United States Constitution by failing to reconsider his motion to sever his trial from Ross’s sua sponte, he does not succeed. Contrary to his implication, the superior court was not under a duty to reconsider in the absence of a request.
21
By contrast, it is the general rule for error under the United States Constitution that reversal requires prejudice and prejudice in turn is presumed unless the state shows that the defect was harmless beyond a reasonable doubt under
Chapman
v.
California
(1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ],
(People
v.
Gordon, supra,
50 Cal.Sd at p. 1267.)
22
In
Hawthorne ,
we made plain that, in instructing on pity and prejudice, a trial court may use the language of CALJIC No. 1.00. (See
People
v.
Hawthorne, supra,
4 Cal.4th at pp. 71-73.) But we did not suggest that it must rigidly adhere to its very words. Our statement that “the trial court” there “should have given the complete text of CALJIC No. 1.00”
(id.
at p. 73) should not be read to the contrary. The trial court there did not merely deviate from the language in question in certain particulars. Rather, it omitted it entirely.
(Id.
at p. 71, fn. 18.)
23
In support of his claim that the superior court erred by instructing that the testimony of an accomplice that tends to incriminate a codefendant ought to be viewed with distrust, defendant relies on, among other decisions,
People
v.
Hartung
(1950) 101 Cal.App.2d 292 [ 225 P.2d 614 ],
People
v.
Sawyer
(1967) 256 Cal.App.2d 66 [ 63 Cal.Rptr. 749 ], and
People
v.
Gonzales
(1970) 4 Cal.App.3d 593 [ 84 Cal.Rptr. 863 ],
Hartung
holds, in substance, that “it is error to give” an instruction that the testimony of an accomplice-defendant should be viewed with distrust “ ‘as its effect is to discredit’ ” him “ ‘and thereby . . . trench upon his constitutional rights by invading the province of the jury.’ ”
(People
v.
Hartung, supra,
101 Cal.App.2d at p. 295 .)
Gonzales
cites
Hartung
and follows it on this point.
(People
v.
Gonzales, supra,
4 Cal.App.3d at p. 607 .)
Sawyer
does not refer to
Hartung
but is to similar effect.
(People
v.
Sawyer, supra,
256 Cal.App.2d at pp. 73-74.)
Hartung
is unsound. In 1934, the California Constitution had been amended through the addition to article VI of former section 19, present section 10, which provides in its current wording that a trial court “may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.”
Hartung ,
however, is based on pre-1934 authority, to the effect that a trial court may not do so under the state charter. More important,
Hartung, Gonzales,
and
Sawyer
are unpersuasive in and of themselves. Each assumes that a defendant is superior to all other witnesses. As stated in the text, he is not: He is equal, and that is all.
24
“In
Carlos
v.
Superior Court
(1983) 35 Cal.3d 131 , 153-154 . . . , we concluded in substance that intent to kill is an element of the felony-murder special circumstance. In
People
v.
Anderson
[(1987)] 43 Cal.3d 1104, 1147 , ... we overruled
Carlos
and held to the contrary. But when, as here, the ‘felony-murder special circumstance is alleged to have occurred after
Carlos
and before
Anderson ,
the former governs.’ ”
(People
v.
Berryman, supra, 6
Cal.4th at p. 1088.)
25
In
People
v.
Turner, supra,
22 Cal.App.3d at page 184 , the court concluded, with a citation to
Chapman
v.
California, supra,
386 U.S. 18 , that an erroneous failure to instruct on the concurrence of act and “specific intent” “was not prejudicial . . . .” Subsequently, in
People
v.
Germany, supra,
42 Cal.App.3d at page 419 , the court concluded, without citing
Chapman,
that a like error “was harmless.” Despite what its language may be read to suggest, the
Turner
court did not hold that the error in question was of federal constitutional dimension
*221
or even that the general rule for error of this sort was applicable. The
Germany
court all but expressly avoided such a holding.
26
Defendant claims in substance that, because the superior court committed error under California law, it thereby committed error under, apparently, the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did
not
commit error under California law.
27
In the course of his argument, defendant asserts that the superior court should have referred to, and explained, proximate cause in accordance with the pattern instruction set out as CALJIC No. 8.55 (5th ed. 1988): “To constitute . . . murder . . . there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death. [H A proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.” We note in passing that, in light of our all but express disapproval in
People
v.
Roberts
(1992) 2 Cal.4th 271, 311-313 [ 6 Cal.Rptr.2d 276 , 826 P.2d 274 ], CALJIC No. 8.55 was revised in 1992 to remove “proximateness”: “To constitute . . . murder . . . there must be, in addition to the death of a human being, an unlawful act which was a cause of that death.”
28
In the course of his argument, defendant cites the first paragraph of the Use Note to CALJIC No. 8.21: “If the death occurs substantially contemporaneously with the commission of the crime, use [the during-the-commission language] and [not the as-a-direct-causal-result alternative]. On the other hand, if death occurs at a later period, use [the as-a-direct-causal-result language] and [not the during-the-commission alternative].” He asserts that Birkman’s death did not occur “substantially contemporaneously” with the commission or attempted commission of a robbery, but rather “at a later period.” He then concludes that the superior court should have used the as-a-direct-causal-result language instead of the during-the-commission alternative. His unstated premise is that use notes, like the one here, have the force of law. They do not.
29
Defendant claims in substance that, because the due process clause of the Fourteenth Amendment to the United States Constitution is violated by the insufficiency of the evidence to support his first degree murder conviction under the theory of felony-murder robbery or attempted robbery, the cruel and unusual punishments clause of the Eighth Amendment is violated as well. As explained in the text, the due process clause is
not
violated.
30
In this case, “[w]e need not, and do not, reach the question whether the sufficiency-of-evidence review specified in the text is required under the due process clause of the Fourteenth Amendment to the United States Constitution.”
(People
v.
Rowland, supra, 4
Cal.4th at p. 271, fn. 11.)
31
Defendant claims in substance that, because the due process clause of the Fourteenth Amendment to the United States Constitution is violated by the insufficiency of the evidence to support the felony-murder-robbery special-circumstance finding, the cruel and unusual punishments clause of the Eighth Amendment is violated as well. As implied in the text and footnote 30,
ante,
the due process clause is
not
violated.
32
Defendant claims in substance that, because Judge Bond committed reversible error under California law by withdrawing authorization to incur expenses for the trip to Cuba by McGarrity and Santivanias, she thereby committed reversible error under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did
not
commit any error under California law.
33
Defendant claims in substance that what we assume to be misconduct by the interpreter’s office through the improper disclosure of information about the trip to Cuba by McGarrity and Santivanias amounts to reversible error under, apparently, the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Any such error is not reversible. The People have shown that any improper disclosure was harmless beyond a reasonable doubt: As explained in the text, such improper disclosure revealed nothing of substance other than the names of the travelers—a fact that was inconsequential.
34
At the outset, defendant asserts that Judge Lewis conducted an inadequate hearing on the question of judicial misconduct, but does not follow through successfully.
35
To the extent that defendant claims that Judge Lewis erred by determining that he did not commit judicial misconduct by receiving from interpreter Cook her complaint about Santivanias’s participation in the trip to Cuba with McGarrity, he fails to persuade. As a general matter, an appellate court reviews a trial court’s ruling on judicial misconduct for abuse of discretion. (Cf. 2 Childress & Davis, Federal Standards of Review,
supra,
§ 12.03, pp. 12-23 to 12-31 [setting forth the standard of review under federal law].) There was no such abuse here. Judge Lewis was not unreasonable in determining that he did not commit judicial misconduct. “A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities . . . .” (Cal. Code Jud. Ethics, canon 3B(7)(b), asterisk omitted; accord, former Cal. Code Jud. Conduct, canon 3A(4) commentary, eff. Jan. 1, 1975.) Such “court personnel” include interpreter Cook. Since Judge Lewis could actively “consult” with her, we believe he could passively receive her complaint. But, even if judicial misconduct had occurred, it would not be reversible because it would not have been prejudicial: there is no reasonable possibility of an effect on the outcome.
36
Defendant claims in substance that, because Judge Lewis committed reversible error under California law by denying his motion to recuse himself, he thereby committed reversible error under the Fifth and Sixth Amendments to the United States Constitution. As explained in the text, he did
not
commit any error under California law.
37
Defendant claims in substance that, because Judge Lewis committed reversible error under California law by failing to require Prosecutor Marlette to testify sua sponte, he thereby committed reversible error under the Fifth, Sixth, and Fourteenth Amendments to the United
*239
States Constitution. As explained in the text, Judge Lewis did
not
commit any error under California law.
38
To the extent that defendant claims that, because defense counsel refused to stipulate to Prosecutor Marlette’s motion, he was provided with ineffective assistance of counsel in violation of article I, section 15 of the California Constitution, he is unsuccessful. Here, as with the Sixth Amendment to the United States Constitution, he would have to demonstrate deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an effect on the outcome. (E.g.,
People
v.
Ledesma, supra,
43 Cal.3d at pp. 215-218.) As explained in the text, he cannot do so.
In a single paragraph in his reply brief, defendant claims for the first time that he was provided with ineffective assistance of counsel in violation of the Sixth Amendment if any of defense counsel’s acts or omissions resulted in a failure to preserve any of 11 issues for review. Again, he “asserts the point perfunctorily,” and “[w]e deny it in the same fashion.”
(People
v.
Ashmus, supra,
54 Cal.3d at p. 1011, fn. 29.)
39
Defendant claims in substance that, because the superior court committed error under California law, it thereby committed error under the Eighth Amendment to the United States Constitution. As explained in the text, the superior court did
not
commit error under California law.
40
Contrary to certain—unobjected-to—comments in the prosecutor’s summation.
41
Pursuant to Penal Code section 190.3, the Sandra S. rape was relevant to one or the other of two issues material to the question of penalty, viz., the “nature and circumstances of the present [capital] offense”—if it was deemed related thereto—or the “presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence”—if it was not so deemed. Pursuant to that same provision, it could be considered under one or the other of two parallel factors, viz., the “circumstances of the crime of which the defendant was convicted in the present proceeding . . .” and the “presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” Had the superior court’s instructions suggested otherwise, they would have been erroneous—against the People, not defendant.
42
See footnote 41,
ante.
43
Defendant claims in substance that, because the superior court committed error under California law by denying his verdict-modification application, it thereby committed error under the Eighth and Fourteenth Amendments to the United States Constitution. As explained in the text, the superior court did
not
commit error under California law.
44
For the “legislative history” of Penal Code sections 667 and 1170.12, see
People
v.
Superior Court (Romero)
(1996) 13 Cal.4th 497, 504-505 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ].
45
Having reviewed the record on appeal, we conclude that the jury found that defendant himself killed, and intended to kill, Allen Birkman, and did so on substantial evidence. Accordingly, we further conclude that the superior court’s imposition of the sentence of death does not violate the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution.
(Cabana
v.
Bullock
(1986) 474 U.S. 376, 386 [ 88 L.Ed.2d 704, 716-717 , 106 S.Ct. 689 ].)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1160457. Public record. Not legal advice.