# People v. Boyette

> California Supreme Court · February 11, 2003 · 127 Cal. Rptr. 2d 544

URL: https://www.frixlaw.com/law-library/cases/2544386

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. MAURICE BOYETTE, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** February 11, 2003
- **Citations:** 127 Cal. Rptr. 2d 544; 29 Cal. 4th 381; 58 P.3d 391
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Werdegar, Kennard
- **Cited by:** 721 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/2544386

## How later opinions describe it (automated extraction)

- holding there was preservation where “[d]efense counsel made several objections that were cut off by the trial court before counsel could articulate fully the grounds of his objection”
- finding permissible the argument “that the facts of the crime showed an absence of remorse and, from that absence, the jury could infer defendant was a threat to kill again”
- holding in a capital case that argument commenting on the lack of corroboration for the defendant’s story did not shift the burden of proof
- holding prosecutor’s repeated references to the defendant as a liar “was a permissible argument”

## Opinion text

127 Cal.Rptr.2d 544 (2003)
29 Cal.4th 381
58 P.3d 391
The PEOPLE, Plaintiff and Respondent,
v.
Maurice BOYETTE, Defendant and Appellant.
No. S032736.
Supreme Court of California.
December 2, 2002.
As Modified February 11, 2003.
Rehearing Denied February 11, 2003. [*]
*560 Lnne S. Coffin, State Public Defender, under appointment by the Supreme Court, Audrey R. Chavez, Deputy State *561 Public Defender; Law Offices of Coffin & Love and Andrew S. Love for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Catherine A. Rivlin and Christina Vom Saal, Deputy Attorneys General, for Plaintiff and Respondent.
WERDEGAR, J.
Maurice Boyette was convicted in 1993 in Alameda County Superior Court of the first degree murders of Gary Carter and Annette Devallier. (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury also sustained a special circumstance allegation that defendant committed a multiple murder (§ 190.2, subd. (a)(3)) and enhancement allegations that defendant was armed with, and used, a firearm in the commission of the murders (§§ 12022, subd. (a), 12022.5, subd. (a)). The jury also convicted defendant of being a felon in possession of a firearm. (§ 12021.) On March 25, 1993, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)
After considering the claims raised on appeal, we affirm the judgment in its entirety.
I. Guilt Phase
A. Facts
1. The Murders
Antoine Johnson was a drug dealer in Oakland, California. Johnson, who had one glass eye and impaired vision in his other eye, befriended defendant, then 19 years old and homeless. Defendant lived with Johnson in a house on 14th Street with a man both knew as "Bishop," one of Johnson's dealers, and Donald Guillory, a habitual user of rock cocaine. On May 23, 1992, Bishop had the use of a tan or yellow, older model Lincoln Continental. Guillory borrowed the car that day to run some errands.
Kenya Lita Cook, Johnson's girlfriend, lived at 2501 Cole Street, a house notorious for its drug activity. Johnson sold drugs and kept cash and weapons at the Cole Street house. Jasmeen Banks, Cook's sister, also lived at the house, as did Marcia Surrell, defendant's mother. Victim Gary Carter sometimes stayed at the Cole Street house with his girlfriend, victim Annette Devallier. Surrell, Carter and Devallier were drug addicts.
On May 23, 1992, Cook telephoned Johnson and informed him that Carter had stolen $3,500 worth of rock cocaine and $1,000 cash from the house. When Guillory returned to the 14th Street house around 5:00 p.m., defendant and Johnson were waiting on the front steps. Johnson asked Guillory to drive them to the Cole Street house and he agreed.
When they arrived at the Cole Street house, Guillory was told to wait in the car. Defendant had to help Johnson up the stairs because he was nearly blind. After a short time, defendant and Cook emerged from the house carrying bags of clothing and put them in the trunk of the car. Defendant told Guillory to come into the house and he complied. He sat on a chair and then moved to a couch at Johnson's request. Johnson was sitting on a long sofa and had a handgun hidden behind him. Defendant, Cook and Jasmeen Banks entered and sat down. Guillory felt tension in the air and asked what they were doing. Johnson told him they were waiting for someone. The group sat and waited; no one spoke.
Later that evening, Carter and Devallier arrived at the house. Upon seeing every-one *562 in the living room, Carter asked, "What's up?" Johnson replied, "Where's my stuff at?" Without waiting for an answer, Johnson produced a handgun and fired four shots in Carter's direction. Carter, who was about four feet from Johnson, grabbed his side and fell. Guillory jumped up and tried to flee out the back door, but found it locked. Meanwhile, Devallier, who apparently had been in the entry when the shooting started, started to help Carter down the stairs and out of the house. Guillory looked back and saw defendant grab the gun from Johnson and say, "Give me the gun, man."
Defendant ran outside with the gun. Devallier was dragging Carter away from the house, but dropped him and ran when she saw defendant. Defendant caught her in the street. She turned to face him and pleaded, "Please, don't do it." Defendant shot her twice in the face from close range, killing her instantly. Guillory heard these two shots as he was leaving the house. He then heard two more shots and saw defendant standing over Carter's body. Defendant apparently shot Carter in the head as he lay there.
Cook helped Johnson out of the house and into the car. Defendant and Guillory then got into the car. Guillory was so unnerved by what he had just witnessed that he had trouble starting the car. Everyone became angry, and Johnson slapped Guillory's head and said if he did not drive better, the "next bullet" would be for him. Guillory eventually started the car and drove away. During the drive back to Bishop's house on 14th Street, Johnson asked about Devallier and defendant said she was "gone." Upon arriving at the house, Johnson and defendant told Guillory, "You don't know nothing, you didn't do nothing, just keep your mouth shut." Later, Guillory overheard Johnson and defendant tell Bishop, "We smoked him."
Police responded to the scene and found Carter's body on the sidewalk and Devallier's body in the street. The front door to the Cole Street house was open but the back door was locked. Both a television and the dryer were turned on. Police found five shell casings in the living room and seven in front of the house. They were Winchester nine-millimeter casings and were all fired from the same gun, a Glock Luger nine-mulimeter semiautomatic pistol. Analyzing the bullet holes in the living room, police determined that the trajectories of the bullets were consistent with having been fired by someone sitting on the long sofa.
Dr. John Iocco, a pathologist, examined the bodies. He determined Devallier had been shot in the face with two bullets, either of which shot would have been fatal. Carter had been shot eight times, but only the shot in the head was disabling and fatal. The other bullet wounds (in his arms, chest, abdomen and legs) would not have immobilized him. Iocco' found cocaine in both Carter's and Devallier's blood.
David Brooks, a neighbor across the street, confirmed that sometime after 11:00 p.m., he saw people struggling in front of the Cole Street house. Someone came out of the house and fired a gun at point-blank range at a male lying on the sidewalk. The gunman then went to a woman who had crawled to the middle of the street. She was on her hands and knees when the gunman shot her. It was too dark to make any positive identifications, but the killer had a build similar to defendant's. Greg Martin was across the street and heard gunshots around 11:25 p.m. He saw a large American car parked in front of the Cole Street house. A few minutes later, the car was gone.
*563 A few days later, Guillory found himself in another of Bishop's cars with defendant. Defendant warned that he "better not say nothing about [the murders]" and threatened that if Guillory talked, he "would be next." Defendant also told him that if he was sent to jail, he would also kill Guillory's family.
2. The Investigation
Before June 3, 1992, Sergeant David Kozicki had received anonymous telephone calls indicating that four people were present at the Cole Street house at the time of the murders: defendant, Antoine Johnson, Jasmeen Banks and Kenya Lita Cook. Sergeant Kozicki left messages for all four and asked that they contact him. On June 3, defendant and Johnson contacted Sergeant Kozicki and made appointments to speak to him. Defendant came to the police station on June 4, waived his Miranda rights, [1] and gave a recorded statement. He admitted he was at the Cole Street house the night of the murders, as were Johnson, Banks and Cook. In addition, a drug dealer nicknamed "Dee" and one of Dee's friends, a man defendant did not know, also were there. Earlier, defendant said, he had heard Carter bragging he had stolen $3,500 worth of drugs from Dee. Defendant claimed Johnson had fired only a single shot at Carter but that he saw Dee and his friend kill Carter and Devallier.
After he gave this statement, police released defendant. Johnson came in the next day and gave a similar statement to police.
Police determined the true identity of "Dee" was Ronald Thomas. Seventeen years old at the time of the Cole Street murders, Thomas had escaped from custody a month before the murders and spent the entire Memorial Day weekend at his mother's home in Richmond. His sister Tonita confirmed that Thomas had spent the night of the killings at a barbecue with friends and relatives. Thomas denied participating in the killings, saying Antoine Johnson was an associate, not a friend. Although defendant claimed he had met Thomas while the two were in juvenile hall together, records showed defendant and Thomas were never in that institution at the same time.
After police released defendant and Johnson, Sergeant Kozicki received more anonymous telephone calls. The callers stated that the police should not have released defendant and Johnson since they were responsible for the killings; that Guillory also had been present and served as the getaway driver; and that by releasing defendant and Johnson, Guillory's life was now in danger. Sergeant Kozicki interviewed Guillory on June 25, 1992, and he denied any knowledge of the killings. When informed that defendant and Johnson had been released and that anonymous callers had said Guillory's life was in danger, Guillory admitted being at the scene and seeing Johnson and defendant shoot the victims.
On July 30, 1992, police arrested defendant, Johnson and Cook at the 14th Street house. (Cook was later released.) Defendant again waived his Miranda rights and gave two taped statements (the July 30th statements). This time he admitted he had gone to the Cole Street house with Johnson and Guillory, that Johnson believed Carter had stolen from him, that Cook gave Johnson a Glock nine-millimeter pistol that held 16 rounds, that Johnson fired several shots at Carter and then gave defendant the gun to "go get the girl," that he shot Devallier in the head after she begged him not to shoot, and *564 that when he walked back to get in the car, Carter—lying on the ground—suddenly grabbed his leg so he shot and killed him (although defendant claimed he shot Carter in the stomach and not the head). Defendant admitted he killed Devallier, but insisted that Johnson had directed him to do so when he said, "go get the girl." Defendant also admitted shooting Carter as he lay on the ground. Defendant confessed that Johnson had invented the story that Dee Thomas was the killer.
Defendant and Johnson were both charged with murdering Carter and Devallier. The trial court granted Johnson's motion for severance, and he eventually pleaded guilty to attempted premeditated murder and was sentenced to life in prison. At trial, defendant claimed his suppression hearing testimony and his July 30th statements to police were false and that he had made them because he was afraid of Johnson. Between his June 4th and July (30th statements* he claimed he and his family had been threatened by both Johnson and Thomas. He claimed he had to move his mother from the Cole Street home as a result of the threats.
At some point, defendant became uncooperative and refused to answer further questions. After consulting with counsel, defendant stated his June 4th statement was correct, but that he would rather confess to murder and face the death penalty than tell the truth about Thomas and bring his family into harm's way.
B. Discussion
1. The Pretrial Suppression Hearing
Defendant raises a number of challenges to the admission of the July 30th statements in which he confessed to shooting the victims. He moved before trial to suppress these statements and litigated the issue in a pretrial hearing. The trial court denied the motion, opening the way for the prosecution to introduce the statements at trial.
a. Facts
The hearing on the motion to suppress was held on January 25, 1993. Sergeant David Kozicki testified that he arranged to speak with defendant about the Carter-Devallier homicides, and defendant came to the police station voluntarily on June 4, 1992. Kozicki testified he read defendant the standard Miranda warning from a form provided by the Oakland Police Department. Defendant stated he understood his rights and wished to talk to police, signing the waiver form in Kozicki's presence. Defendant was cooperative and appeared to understand his rights. Defendant waived his rights at 9:38 a.m. and was interviewed until 10:45 a.m, whereupon they took a break until 11:07 a.m. At some point, Kozicki turned on the tape recorder and began recording the interview. Defendant was re-Mirandized and again waived his rights on tape. Defendant admitted he was at the Cole Street house on the night of the murders and claimed he saw Dee Thomas commit the shootings. Sergeant Kozicki denied promising to help defendant if he assisted police in getting evidence against Johnson. The tape of the June 4th interview was played for the trial court.
Sergeant Kozicki obtained search and arrest warrants for defendant on July 28th and asked defendant's grandmother and aunt to have defendant contact him. Defendant contacted Kozicki around 12:30 p.m. on July 30th and made arrangements to return to the police station for another interview. Police did not wait and took defendant (along with Antoine Johnson and Kenya Lita Cook) into custody around 4:30 p.m. that same day, although they did not inform defendant he was under arrest. *565 The interrogation again took place in a police department interview room, and Sergeant Kozicki again admonished defendant of his Miranda rights, which defendant waived, signing the waiver form. Defendant's demeanor "was basically the same, he was cooperative." The interview began around 9:00 p.m., and Kozicki began taping the interview at 9:54 p.m. In this interrogation, defendant admitted his guilt. Kozicki denied telling defendant that he could go home if he gave a statement. He also denied telling defendant police were primarily interested in Johnson. When asked whether defendant "seem[ed] a little slow ... mentally," Sergeant Kozicki replied in the negative. The tape of this July 30th interview was played for the trial court.
A second tape recording was made immediately after the first July 30th statement in which defendant again admitted his complicity. In this second recording, defendant did not mention Johnson by name. This tape was made for use in case defendant and Johnson were tried together. (See Bruton v. United States (1968) 391 U.S. 123, 137 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 ; People v. Aranda (1965) 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 .)
Sergeant Brian Thiem, who was also present during parts of the interrogations, testified at the hearing and confirmed that defendant had waived his Miranda rights on June 4, 1992, and had no problem understanding those rights. Before the July 30th interview, defendant again waived his Miranda rights.
Defendant also testified at the suppression hearing. He stated he was 19 years old at the time of the interrogations and had gone as far as the 10th grade in school. When asked whether he could read and write, he answered, "somewhat." He confirmed that he had gone to the police station on June 4th to speak with Sergeant Kozicki; that he was placed in a windowless interview room; and that although Kozicki was not "nice" to him, he felt free to leave. He was released, but on July 30th police took him (along with Johnson and Cook) into custody and did not immediately tell him he was under arrest. He was handcuffed, but the cuffs were removed shortly after he was placed in the interview room.
According to defendant, about an hour later, Sergeant Kozicki appeared and pressured him to implicate Johnson in the crimes. Defendant testified that when he requested an attorney, Kozicki merely told him that the district attorney wished to speak to him and then left the room. No attorney was forthcoming. Defendant testified that Kozicki returned later and told him that if he implicated Johnson in the Cole Street murders, he would be free to go. Defendant also testified that Kozicki threatened him, saying that if he did not cooperate, he would be unable to see his mother and grandmother again.
Returning to the question of the Miranda waivers, the following colloquy occurred between defense counsel and defendant:
"Q. All right. They gave you a Miranda waiver, right?
"A. Yes.
"Q. Did you understand that? "A. A little.
"Q. What didn't you understand about it?
"A. You know, the—he said I had a right to remain silent, I understand that, [¶] But then when I asked for a lawyer, you know, I asked for one, he said: Well, you really didn't need it.
"Q. He tell you why you didn't need it?
*566 "A. He said because if I told on Antoine [Johnson], he was going to let me go.
"Q. Now, you gave him a statement, is that right?
"A. Yes.
"Q. And you thought if you gave him a statement, you would get to go home?
"A. Yes."
Later, defendant testified that Kozicki promised that if he confessed that Johnson had made him shoot the victims, Kozicki would release him. The prosecutor asked how that was consistent with defendant's admission on the tape that he had killed the victims to prevent them from talking. Defendant replied that Kozicki had told him to say that.
The trial court then interceded:
"THE COURT: You mean everything you said in that second statement ... about yourself and about ... Mr. Johnson was told to you ahead of time by Sergeant Kozicki?
THE WITNESS: Yes.
"THE COURT: How long did it take you to memorize what he wanted you to say?
"THE WITNESS: He was saying—he said it to me—it took an hour. Me and him stayed in the room for about 30 minutes to an hour.
"THE COURT: You memorized it in an hour?
"THE WITNESS: No. Some of the things I made up myself.
"THE COURT: Then he didn't tell you everything to say?
"THE WITNESS: Not everything.
"THE COURT: There's nothing that's ... actually the truth in that second statement?
"THE WITNESS: Some things.
"THE COURT: Well, what?
"THE WITNESS: That I did shoot Gary [Carter], but I didn't shoot the girl."
After hearing the testimony and argument from counsel, the trial court denied defendant's suppression motion, explaining: "[The] Court makes the finding that the Miranda warnings and waiver were sufficient. He was Mirandized at least three times and more; [¶] That the statements, for the purposes of the hearing, the tape recordings together with the transcriptions will be admitted into evidence .... [¶] The Court would find that the statements were all free and voluntary, there is no constitutional violation of rights and that the statements, each of them ... are admissible. [¶] The Court, in effect, finds that the defendant is not a credible witness as to the statements, based upon his own testimony and the three statements."
b. Alleged involuntariness
Defendant first contends his July 30th statements were involuntary because he was young and immature, had finished only the ninth grade, and was unfamiliar with the legal system. He argues police used deceptive practices to coerce him to confess. We agree with respondent that the record does not support these claims.
The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession. [Citation.] The federal Constitution requires the prosecution to establish, by a preponderance of the evidence, that a defendant's confession was voluntary. [Citation.] The same is now true under California law as a result of an amendment to the state Constitution enacted as part of Proposition 8, a 1982 voter initiative. (See Cal. Const, art. I, *567 § 28, subd. (d); ...) ... [¶] Under both state and federal law, courts apply a `totality of circumstances' test to determine the voluntariness of a confession. [Citations.] Among the factors to be considered are `"the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health."` [Citation.] On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review. [Citations.] In determining whether a confession was voluntary, `[t]he question is whether defendant's choice to confess was not "essentially free" because his will was overborne.' [Citation.]" ( People v. Massie (1998) 19 Cal.4th 550, 576 , 79 Cal.Rptr.2d 816 , 967 P.2d 29 .)
Although defendant claims police used deceptive practices to coerce him to confess, the only allegedly deceptive practice he identifies is Sergeant Kozicki's failure to inform him immediately upon taking him into custody on July 30 that police had obtained an arrest warrant naming him as a suspect in the Cole Street murders. Defendant does not explain how the voluntariness of his confession required police to disclose they were focusing on him as a suspect. A criminal defendant's Miranda waiver is voluntary even if police fail to inform the defendant of all the crimes about which he might be questioned. ( Colorado v. Spring (1987) 479 U.S. 564 , 107 S.Ct. 851 , 93 L.Ed.2d 954 .) "[A] valid waiver does not require that an individual be informed of all information `useful' in making his decision or all information that `might ... affec[t] his decision to confess.' [Citation.] `[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.' [Citation.] Here, the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature." ( Id. at pp. 576-577, 107 S.Ct. 851 , fn. omitted.) As the high court found concerning the Miranda waiver in Colorado v. Spring , we find Sergeant Kozicki's failure to inform defendant of all the information that might have been useful to him did not render his subsequent statements involuntary.
Defendant also highlights the fact of his youth, his lack of educational achievement, his modest level of literacy, and his unfamiliarity with the legal system as evidence that his confession was involuntary. Although these are factors a court should consider when evaluating the voluntariness of a confession, the record does not even hint that these factors came into play in this case. For example, defendant does not allege he failed to understand the proceedings or Sergeant Kozicki's statements. Moreover, given defendant's prior felony convictions, we cannot conclude he was unfamiliar with the legal system. In addition, both Sergeants Kozicki and Thiem testified defendant understood his rights, and Kozicki testified defendant did not seem mentally slow. There is thus substantial evidence supporting the trial court's decision that, despite defendant's age, educational level and maturity, his July 30th statements were voluntary.
Defendant finally contends his July 30th statements were involuntary because they were induced by improper promises of leniency. A promise to an accused that he will enjoy leniency should he confess obviously implicates the voluntariness of any resulting confession. ( People v. Williams *568 (1997) 16 Cal.4th 635, 660-661 , 66 Cal. Rptr.2d 573 , 941 P.2d 752 .) Although defendant testified that Sergeant Kozicki told him he would let him go free should he confess and implicate Johnson, the trial court expressly found that defendant was not a credible witness. As the trial court was able to observe defendant testify and listen to the tapes of defendant's statements, we find no reason to doubt the soundness of the trial court's ruling that police made no improper promises of leniency to defendant.
Upon independent review of the totality of the circumstances ( People v. Massie, supra, 19 Cal.4th at p. 576 , 79 Cal.Rptr.2d 816 , 967 P.2d 29 ), we conclude defendant's confession was voluntary.
c. Alleged Miranda violation
Defendant makes a perfunctory claim that admission of the July 30th statements violated his rights under Miranda, supra, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 . Both Sergeants Kozicki and Thiem affirmed on the record that defendant had been informed of his rights and had waived them. The tape recording also indicated defendant had waived his rights. Although defendant testified he asked for an attorney and was refused, the trial court found he was not a credible witness. "When reviewing a trial court's decision on a motion that a statement was collected in violation of the defendant's rights under Miranda, supra, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , we defer to the trial court's resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence." ( People v. Weaver (2001) 26 Cal.4th 876, 918 , 111 Cal. Rptr.2d 2 , 29 P.3d 103 ( Weaver) . ) We find such substantial evidence in the sworn testimony of the officers, in the trial court's ability to observe the demeanor of defendant while testifying, and in the court's ability to listen to defendant waiving his rights on the tape recordings. Accordingly, we reject his claim that his statements were collected in violation of Miranda .
d. Alleged violation of his constitutional rights
As noted above, defendant testified at the suppression hearing. During the prosecutor's cross-examination of defendant, defendant admitted he had lied in the June 4th statement when he claimed he saw Dee Thomas and a friend commit the crimes. Defendant also claimed he lied in the first July 30th statement when he stated that he was himself principally responsible, and had lied in the second July 30th statement when he made essentially the same statement. Instead, he testified he took responsibility for the shootings because Sergeant Kozicki told him he would be free to leave if he admitted guilt and implicated Johnson. Defense counsel objected several times, arguing the prosecutor's questions went to the content of defendant's statements and not their voluntariness. The trial court overruled the objections, ruling the questions were relevant to defendant's credibility.
Defendant now contends the prosecutor's questions were improper because they went beyond the scope of his direct testimony, elicited irrelevant information by delving into the content of his statements and not their voluntariness, and violated his right to be free of compelled self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution. At the threshold, the People contend defendant failed to object on these grounds and thus did not preserve them for appellate review. [2] We disagree: Defense *569 counsel made several objections that were cut off by the trial court before counsel could articulate fully the grounds of his objection. Counsel spoke of a concern that the prosecutor was questioning about the content of defendant's July 30th statements rather than their voluntariness, a clear reference to the scope of cross-examination and the relevance of the evidence elicited. In addition, counsel twice mentioned a concern that the prosecutor was attempting to get defendant to make admissions, from which we may discern that the basis of counsel's objection was defendant's right against compelled self-incrimination. These objections were to questions concerning the June 4th statement, but counsel made a continuing objection as questioning turned to the two July 30th statements. Although the record is not crystal clear, we conclude these matters were adequately preserved for appeal.
Turning to the merits, we agree with the trial court that defendant's credibility was at issue in the suppression hearing and he properly could be impeached with information that he had lied in all three of his recorded statements. Contrary to defendant's contention, whether or not his July 30th statements were coerced was not the "sole issue at the suppression hearing." In addition to the question of voluntariness, the trial court was required to rule on whether defendant was afforded his rights under Miranda, supra, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 . Because defendant claimed Sergeant Kozicki had ignored him when he invoked his right to an attorney, whereas both Kozicki and Sergeant Thiem testified defendant had voluntarily waived his rights, defendant's credibility was implicated directly. "The credibility of a witness may be challenged with evidence of prior statements by the witness that are inconsistent with the witness's testimony at the trial." ( People v. Price (1991) 1 Cal.4th 324, 474 , 3 Cal. Rptr.2d 106 , 821 P.2d 610 ; see also Evid. Code, § 780, subds. (h) & (k).) [3]
Citing Chambers v. Mississippi (1973) 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 , defendant contends that although the prosecutor's questions may have been proper under the Evidence Code, strict application of state evidentiary rules may, under the circumstances, nevertheless violate his constitutional rights. Although defendant is correct in the abstract that a state evidentiary rule may still be unconstitutional, "`[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense.'" ( People v. Jones (1998) 17 Cal.4th 279, 305 , 70 Cal. Rptr.2d 793 , 949 P.2d 890 , quoting People v. Hall (1986) 41 Cal.3d 826, 834 , 226 Cal. Rptr. 112 , 718 P.2d 99 ; see also People v. Fudge (1994) 7 Cal.4th 1075, 1122 , 31 Cal. Rptr.2d 321 , 875 P.2d 36 , and cases cited.) Defendant fails to explain why the relatively routine practice of permitting an adverse party to impeach the credibility of a witness with prior falsehoods in the same case somehow falls so far from a standard *570 of fundamental fairness that we may conclude it violates defendant's constitutional rights.
Although defendant's credibility was at issue, the People were not entitled to impeach him by violating his constitutional privilege against compelled self-incrimination. Defendant contends that by allowing the prosecutor to continue her cross-examination into the substance and truthfulness of his July 30th statements, he was compelled to admit his guilt in violation of his rights under the Fifth Amendment. [4] We disagree. Defendant's statements—even if they constituted admissions of guilt—were admissible in the suppression hearing only, and not to prove his guilt in the People's case-in-chief at trial. ( Simmons v. United States (1968) 390 U.S. 377, 393-394 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 .) This limited immunity [5] protects an accused's rights under the Fifth Amendment and, in light of this immunity, we conclude defendant's Fifth Amendment rights were not violated at the hearing.
To the extent defendant also claims the prosecutor's questioning constituted misconduct and violated his constitutional rights to due process, a fair trial, and his rights under the Eighth Amendment to the United States Constitution, we find no objection on those grounds and conclude they were not preserved for appeal. ( People v. Mickle (1991) 54 Cal.3d 140, 191 , 284 Cal.Rptr. 511 , 814 P.2d 290 .) The record does not indicate counsel's strategy in failing to object on these grounds; most likely counsel believed defendant's constitutional rights were protected by the use immunity set forth in Simmons v. United States, supra, 390 U.S. at pages 393-394, 88 S.Ct. 967 . In any event, because this is not a situation in which counsel could have had no reasonable purpose for failing to object, we must reject defendant's further claim that his defense counsel were constitutionally ineffective for failing to object. Such claims must instead be raised in a collateral proceeding. ( People v. Kraft (2000) 23 Cal.4th 978, 1068-1069 , 99 Cal.Rptr.2d 1 , 5 P.3d 68 ; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268 , 62 Cal.Rptr.2d 437 , 933 P.2d 1134 .)
2. Challenge for Cause
Defendant challenged Prospective Juror K.C. for cause, claiming he was biased in favor of the death penalty, but the trial court denied the challenge. Defendant claims the trial court's ruling was error and denied his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as state constitutional analogs. As we explain, the trial court erred by not excusing this juror, but the court's error did not compromise the impartiality of the jury so no relief is warranted.
At the outset, the People contend defendant failed to preserve the claim for appeal because, although he made a timely challenge for cause, exercised a peremptory challenge to excuse the objectionable juror, and then exhausted his peremptory *571 challenges, he did not then express dissatisfaction at the composition of the jury as eventually selected. (See Weaver, supra, 26 Cal.4th at pp. 910-911, 111 Cal.Rptr.2d 2 , 29 P.3d 103 .) As in Weaver , we will not rely on this omission, for the law was in a state of flux on this point at the time of defendant's 1993 trial. (Compare People v. Crittenden (1994) 9 Cal.4th 83, 121 , 36 Cal.Rptr.2d 474 , 885 P.2d 887 [statement of dissatisfaction with the jury required] with People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088 , 259 Cal.Rptr. 630 , 774 P.2d 659 [suggesting relief could still be granted if a defendant could show denial of an impartial jury].)
We recently stated the law with regard to challenges for cause: "The state and federal constitutional guarantees of a trial by an impartial jury include the right in a capital case to a jury whose members will not automatically impose the death penalty for all murders, but will instead consider and weigh the mitigating evidence in determining the appropriate sentence. [Citation.] `[A] juror may be challenged for cause based upon his or her views concerning capital punishment only if those views would "prevent or substantially impair" the performance of the juror's duties as defined by the court's instructions and the juror's oath.' [Citations.] If the death penalty is imposed by a jury containing even one juror who would vote automatically for the death penalty without considering the mitigating evidence, `the State is disentitled to execute the sentence.' [Citation.]
"Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. [Citation.] The trial court must determine whether the prospective juror will be `unable to faithfully and impartially apply the law in the case.' [Citation.] A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror's responses in deciding whether to remove the juror for cause. The trial court's resolution of these factual matters is binding on the appellate court if supported by substantial evidence. [Citation.] `[W]here equivocal or conflicting responses are elicited regarding a prospective juror's ability to impose the death penalty, the trial court's determination as to his true state of mind is binding on an appellate court. [Citations.]' [Citation.]" ( Weaver, supra, 26 Cal.4th at p. 910 , 111 Cal.Rptr.2d 2 , 29 P.3d 103 , quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 , 105 S.Ct. 844 , 83 L.Ed.2d 841 and Morgan v. Illinois (1992) 504 U.S. 719, 729 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 .)
Prospective Juror K.C. indicated on his juror questionnaire that he was "strongly in favor" of the death penalty. He also indicated that the death penalty should automatically be imposed on those defendants convicted of committing a multiple murder. When asked by the trial court whether he was "strongly in favor of the death penalty," he answered in the affirmative. When the court asked whether he could return "a verdict of life imprisonment without [the] possibility of parole if you thought it appropriate," he replied, "I would probably have to be convinced." He did not similarly qualify his answer when asked whether he could impose the death penalty. He explained he believed the death penalty was "effective" and that, given an "honest choice" between the two penalties, he "would be more inclined to go with the death penalty." He equivocated when asked whether he would exclude consideration of a life term, saying, "Never having been in that situation, I have no idea." When asked whether he could impose a life term if he thought it appropriate, he replied: "Yeah, if there was enough to make it seem appropriate, yes, I could."
*572 Defense counsel then undertook voir dire. The juror affirmed he was "somewhat pro death," and when asked whether both penalties were "open" to him in a situation where aggravating factors greatly outweighed mitigating ones, he replied: "I would vote probably for the death penalty. Life imprisonment without possibility of parole only lasts as long as the political climate makes it a good idea." The following exchange then occurred:
"THE COURT: You understand life imprisonment without possibility of parole means that?
"PROSPECTIVE JUROR [K.C.]: Unless the sentence is commuted by the Governor.
"THE COURT: You may be aware of some cases.
"PROSPECTIVE JUROR [K.C.]: Yes, I am.
"THE COURT: Such as Sirhan Sirhan and the Manson [case] in which he comes up for parole.
"PROSPECTIVE JUROR [K.C.]: No, that's not—
"THE COURT: They were convicted at a time when the statute didn't provide for life imprisonment without possibility of parole.
"PROSPECTIVE JUROR [K.C.]: I'm referring to—
THE COURT: Can you assume that life imprisonment without possibility of parole means what it says?
"PROSPECTIVE JUROR [K.C.]: Well, from my experience in other states where it was imposed, no, it didn't.
"THE COURT: In California, can you assume that?
"PROSPECTIVE JUROR [K.C.]: Given some of the political leaders in this state, no, I can't." (Italics added.)
In addition to the question of the death penalty, the juror explained he had been the victim of an attempted murder, but asserted that experience would not bias him against defendant because it had happened so long ago. He also testified he had a son with a legal problem and that his son's situation would affect his attention span for defendant's case. Defense counsel then challenged the juror for cause, but the trial court denied it, explaining: "I think he's qualified under Wainwright [v. Witt, supra, 469 U.S. 412 , 105 S.Ct. 844 ]." Defendant later used one of his peremptory challenges to remove Prospective Juror K.C. from the jury.
Although we pay great deference to the decisions of our trial courts in their determinations of whether a prospective juror can remain impartial, we conclude the trial court should have sustained defendant's challenge for cause against this juror. This was not a case in which the juror gave equivocal answers: He was strongly in favor of the death penalty and was not shy about expressing that view. He indicated he would apply a higher standard ("I would probably have to be convinced") to a life sentence than to one of death, and that an offender (such as defendant) who killed more than one victim should automatically receive the death penalty. Finally, he admitted he would not follow an instruction to assume that a sentence of life in prison with no possibility of parole meant the prisoner would never be released. Because this juror's views would have "`prevented] or substantially impair[ed] the performance of his duties as a juror in accordance with his instructions and his oath'" ( Wainwright v. Witt, supra, 469 U.S. at p. 424 , 105 S.Ct. 844 ), the trial court erred in denying defendant's challenge for cause.
Because defendant removed Prospective Juror K.C. from the jury using a peremptory *573 challenge, however, the juror never served on the jury and the impartiality of defendant's jury was not undermined by the trial court's error. Defendant's argument is thus reduced to a claim that the trial court's error forced him to use one of his peremptory challenges, thereby reducing the number he had on hand later in the trial.
Relief is not warranted on this theory. "It is well settled that even if the trial court erred in denying a defendant's motion to remove a juror for cause, that error will be considered harmless if `[n]one of the prospective jurors whom defendant found objectionable actually sat on his jury.' [Citations.] `[W]e reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury.' [Citation.]" ( People v. Hawkins (1995) 10 Cal.4th 920, 939 , 42 Cal.Rptr.2d 636 , 897 P.2d 574 , overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 89-91 , 96 Cal.Rptr.2d 451 , 999 P.2d 675 .) Furthermore, defendant did not express dissatisfaction with the jury as constituted and, although we decline to find he forfeited the issue as a result, that omission is relevant to determining whether he was prejudiced by the trial court's error. To the extent defendant now suggests he was unhappy with the composition of the jury, his "belated recitation of dissatisfaction with the jury is speculative. Consequently, he fails to demonstrate that he was harmed by the denial of his challenges for cause." ( People v. Johnson (1992) 3 Cal.4th 1183, 1211 , 14 Cal.Rptr.2d 702 , 842 P.2d 1 .)
In short, we conclude the trial court's erroneous denial of defendant's challenge for cause did not violate his constitutional right to an impartial jury. [6]
3. Alleged Wheeler Error
Defendant next claims the prosecutor excused three African American women from the jury in violation of his rights under People v. Wheeler (1978) 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 ( Wheeler ). "`In [Wheeler] ... we held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [ 106 S.Ct. 1712, 1716-19 , 90 L.Ed.2d 69, 79-83 ] ... the United States Supreme Court held that such a practice violates, inter alia, the defendant's right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution....'" ( People v. Catlin (2001) 26 Cal.4th 81, 116 , 109 Cal.Rptr.2d 31 , 26 P.3d 357 .)
*574 a. Facts
Defendant focuses on three prospective jurors.
Prospective Juror V.F. In her jury questionnaire, V.F. stated she was "neutral" about the death penalty, would vote in favor of an initiative creating a death penalty in California, and if she found herself on the jury would not automatically vote for or against it. She wrote that the purpose of the death penalty was "[t]o remove that person from the earth so that he/she cannot commit any other crimes and to make the statement to all—Commit a Crime you must be punished to some degree." In response to the question "Overall, in considering general issues of punishment, which do you think is worse for a defendant?" she circled "Life in prison without possibility of parole." She explained: "Because it gives him/her longer to think about the crime and to ask[ ] themselves whether it was worth it or was there another answer." In response to the question "Do you feel that the death sentence is imposed:" she circled "About right."
During voir dire, she testified she was a Christian but that voting for the death penalty would not get her in trouble at her church. She admitted to some confusion over whether life meant with or without parole, but affirmed her belief that life in prison was "worse" because the prisoner would know he was in prison "forever" and that "you could be tortured that way where you can't get out into society." She affirmed she could vote for the death penalty.
Prospective Juror B.W. In her jury questionnaire, B.W. stated she was "moderately in favor" of the death penalty, would vote in favor of an initiative creating a death penalty in California, and if she found herself on the jury would not automatically vote for or against it. She wrote that the purpose of the death penalty was so "that person will never commit that crime again." In response to the question "Overall, in considering general issues of punishment, which do you think is worse for a defendant?," she circled "Death." She explained: "They will never exist again. They will leave family and friends." In response to the question "Do you feel that the death sentence is imposed:" she circled "Randomly" and explained: "Look at death row. People have been waiting for years. You shouldn't have death row if death never comes." During voir dire, she testified she could vote for the death penalty if selected for the jury.
Prospective Juror L.D. In her jury questionnaire, L.D. stated she was "moderately in favor" of the death penalty, would vote in favor of an initiative creating a death penalty in California, and if she found herself on the jury would not automatically vote for or against it. Responding to a question asking what she thought was the purpose of the death penalty, she wrote: "I think it deters other criminals from committing serious crimes." In response to the question "Overall, in considering general issues of punishment, which do you think is worse for a defendant?" she circled "Life in prison without possibility of parole." She explained: "Because I believe life in prison is a constant suffering." In response to the question "Do you feel that the death sentence is imposed:" she circled "About right" and explained: "I think it is about right because of all the things that have to be taken into consideration. When dealing with a life you must be sure." During voir dire, this juror reiterated she had a brother who was a police officer, that she was "moderately in favor" of the death penalty, and that she was capable of returning a death penalty verdict.
*575 After the prosecutor had exercised 15 of her peremptory challenges, defendant objected on Wheeler grounds. The motion was reserved until both sides had exhausted their peremptory challenges and a jury was selected. The court then entertained the motion. Defense counsel claimed the prosecutor had struck four of the six African-American women from the panel. Specifically, the prosecutor had removed Prospective Jurors V.F, B.W, L.D. and G.A. [7] The trial court noted that the panel still contained two African American women and stated: "I don't think a prima facie case has been shown.... I don't know if the district attorney wants to explain her challenges or not." The prosecutor explained that she did not have the juror questionnaires with her, but that her recollection was that the four African-American women she challenged were what she called "lifers," that is, they could not vote for the death penalty. The prosecutor also noted some African-Americans remained on the jury.
The trial court then denied the motion, stating: "As I say, I don't think a prima facie case has been shown. [¶] I would have to agree with the district attorney on her challenges of the four Black African-American women, that I did not believe they were persons who would vote for the penalty of death based upon their questionnaires and their answers [during voir dire]."
b. Discussion
We presume that "a prosecutor uses his peremptory challenges in a constitutional manner. [Citation.] The defendant bears the burden to show, prima facie, the presence of purposeful discrimination. [Citation.] If he succeeds, the burden shifts to the prosecutor to show its absence." ( People v. Alvarez (1996) 14 Cal.4th 155, 193 , 58 Cal.Rptr.2d 385 , 926 P.2d 365 .) In order to establish a prima facie case of group, bias, a litigant must raise the issue in a timely fashion, make as complete a record as feasible, establish that the persons excluded are members of a cognizable class, and show a "`strong likelihood'" of group rather than individual bias. ( People v. Howard (1992) 1 Cal.4th 1132, 1153-1154 , 5 Cal.Rptr.2d 268 , 824 P.2d 1315 , italics omitted; Wheeler, supra, 22 Cal.3d at p. 280 , 148 Cal.Rptr. 890 , 583 P.2d 748 .) "We give great deference to the trial court in distinguishing bona fide reasons from sham excuses." ( People v. Turner (1994) 8 Cal.4th 137, 165 , 32 Cal.Rptr.2d 762 , 878 P.2d 521 ; Wheeler, supra, at p. 282 , 148 Cal.Rptr. 890 , 583 P.2d 748 .)
The dispositive question here is whether defendant demonstrated a prima facie case of group bias. Neither party disputes that the issue was timely raised or that the record is adequate for review. Moreover, that African American women comprise a cognizable class for Wheeler purposes is clear. ( People v. Clair (1992) 2 Cal.4th 629, 652 , 7 Cal.Rptr.2d 564 , 828 P.2d 705 .) We turn, then, to whether defendant established a "strong likelihood" of group bias. Although the three jurors in question were all African American women, defense counsel did not provide any other reason why he believed group bias motivated the prosecutor. Although the trial court did not immediately rule on whether a prima facie showing had been made, it nevertheless asked the prosecutor for her reasons. As in other cases, we hold this did not moot the question of whether defendant had established a prima facie showing. ( People v. Welch (1999) 20 Cal.4th 701, 746 , 85 Cal.Rptr.2d 203 , 976 P.2d 754 ; People v. Turner, supra, 8 *576 Cal.4th at p. 166, 32 Cal.Rptr.2d 762 , 878 P.2d 521 .)
The prosecutor indicated she was concerned about the jurors' willingness to impose the death penalty. All three jurors had professed they were open to voting to impose the death penalty, although none was a strong supporter of that penalty. Prospective Juror V.F. had indicated she was neutral about the death penalty. Both V.F. and Prospective Juror L.D. suggested they believed life in prison was a harsher penalty. Prospective Juror B.W. ex-pressed some impatience with the death penalty, noting the length of time some inmates spend on death row. The trial court was clearly aware of the answers these jurors had provided on the questionnaires and observed their demeanor as they testified, two factors undermining defendant's claim that the court accepted the prosecutor's reasons without reviewing the record.
Defendant further claims it was not true the three jurors would refuse to vote for the death penalty, but neither the prosecutor nor the trial court was required to take the jurors' answers at face value. Although defendant contends that other jurors who were equally unenthusiastic about the death penalty were not challenged, and that the African-Americans left on the jury were much more prodeath-penalty, we do not engage in a comparative analysis when evaluating a prosecutor's stated reasons. ( People v. Fuentes (1991) 54 Cal.3d 707, 714-715 , 286 Cal. Rptr. 792 , 818 P.2d 75 .)
Defendant also contends the trial court used the wrong standard in assessing whether he had established a prima facie showing of group bias. He claims he need only `raise an inference' of such bias, whereas we have held he must `show a strong likelihood' of such bias. (See Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190 [discussing a perceived difference between the two standards].) However, as we have explained, `in California, a "strong likelihood" means "a reasonable inference."' ( People v. Box (2000) 23 Cal.4th 1153, 1188, fn.7 , 99 Cal.Rptr.2d 69 , 5 P.3d 130 ; see Wheeler, supra, 22 Cal.3d at pp. 280-281, 148 Cal.Rptr. 890 , 583 P.2d 748 . Moreover, even assuming arguendo that the two standards were different, and that the `reasonable inference' standard were more lenient, the court's ruling finding that defendant had not established prima facie showing of group bias was supportable.
Because the trial court's ruling that defendant failed to make a prima facie showing of group bias is supported by substantial evidence and is thus entitled to deference, we deny defendant's Wheeler claim.
4. Admission of Evidence Regarding the Victims
Defendant next claims the trial court erred by admitting into evidence photographs of the victims while they were alive and testimony from surviving relatives identifying them from those pictures. He argues this evidence "prevented an impartial assessment of guilt, distracted the jury from its responsibility to decide the appropriate penalty, and violated [his] rights under state law and federal constitutional law."
The prosecutor asked Alvarez Devallier, Annette's father, to identify her from a photograph taken while she was alive. He did so and also testified she had been living at a rehabilitation program on Hilton Street until a week before she was killed. The People also had Reo Carter, Gary's sister, identify him from a photograph taken while he was alive. She did so and testified the victim had been living with her at the time he was killed. Defendant did not object to this testimony or to the use of the photographs. When the prosecutor later moved to admit both photographs into evidence, however, defendant *577 objected, explaining that he would stipulate to the identity of the victims. The trial court overruled the objection, explaining that the "probative value [of the evidence] outweighs any prejudicial effect."
Because defendant did not object at the time the photographs were used in questioning the witnesses, he failed to preserve the issue for appeal. Although he later raised an objection, that objection was not sufficiently timely to preserve the issue. The requirement that an objection to evidence be timely made is important because it "allows the court to remedy the situation before any prejudice accrues." ( People v. Taylor (1982) 31 Cal.3d 488, 496 , 183 Cal.Rptr. 64 , 645 P.2d 115 .)
Defendant contends that, if we find the issue was not preserved for appeal, we should find that his counsel were constitutionally ineffective for failing to object. Failure to object rarely constitutes constitutionally ineffective legal representation ( People v. Avena (1996) 13 Cal.4th 394, 421 , 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ), but assuming the matter was preserved, we would still find no error. Although only relevant evidence is admissible (Evid.Code, § 350), "[t]he state is not required to prove its case shorn of photographic evidence merely because the defendant agrees with a witness or stipulates to a fact." ( Weaver, supra, 26 Cal.4th at p. 933, 111 Cal.Rptr.2d 2 , 29 P.3d 103 .) Trial courts have wide discretion in admitting such photographic evidence, and we have explained that "trial courts should be alert to how photographs may play on a jury's emotions, especially in a capital case, [and] we rely on our trial courts to exercise their discretion wisely, both to allow the state fairly to present its case as well as to ensure that an accused is provided with a fair trial by an impartial jury." ( Id. at p. 934, 111 Cal.Rptr.2d 2 , 29 P.3d 103 .) We have examined the challenged photographs and conclude the trial court did not abuse its broad discretion. Photographic evidence of murder victims while they were alive is not necessarily inadmissible. ( People v. Smithey (1999) 20 Cal.4th 936, 975 , 86 Cal.Rptr.2d 243 , 978 P.2d 1171 .) Even were we to reach a different conclusion, any error was manifestly harmless in light of the strong evidence of guilt, including defendant's confession. ( People v. Watson (1956) 46 Cal.2d 818, 836 , 299 P.2d 243 .)
To the extent defendant argues that admission of the photographic evidence violated his federal constitutional rights to due process, a fair trial, a reliable penalty determination, freedom from cruel and unusual punishment, and his right to due process under Hicks v. Oklahoma, supra, 447 U.S. 343 , 100 S.Ct. 2227 , 65 L.Ed.2d 175 , we find those issues were not preserved for appeal because defendant did not object at trial on those specific grounds. ( People v. Crittenden, supra, 9 Cal.4th at p. 126 , 36 Cal.Rptr.2d 474 , 885 P.2d 887 ; People v. Rogers (1978) 21 Cal.3d 542, 547-548 , 146 Cal.Rptr. 732 , 579 P.2d 1048 .) "Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence." ( People v. Mattson (1990) 50 Cal.3d 826, 854 , 268 Cal.Rptr. 802 , 789 P.2d 983 .)
With regard to the testimony of Alvarez Devallier and Reo Carter, defendant did not object at all. Accordingly, he failed to preserve his objections to their testimony. Even were we to reach the issue, both witnesses refuted an aspect of the defense's case, namely, defendant's claim that the victims were living at the Cole Street house at the time they were killed. The testimony of these witnesses *578 was thus relevant and admissible. Moreover, defendant is incorrect that their testimony was inflammatory; it was, instead, brief and factual. We find no error.
5. Restriction on Defense Evidence
Defendant next claims the trial court erred in excluding portions of the testimony of Earl Turner, Latonya Jackson and Marcia Surrell on either hearsay or relevance grounds. As we explain, the trial court made a small error, but the error was harmless.
a. Facts
Defendant gave varying stories about his involvement in the crimes. His first recorded statement to police on June 4, 1992, blamed Ronald "Dee" Thomas for the shootings. On July 30, 1992, he gave two additional recorded statements, confessing to shooting both Devallier and Carter, though insisting Antoine Johnson had directed him to kill Devallier. This was contrary to his June 4th statement, in which he had blamed Thomas for the killings. On January 25, 1993, at the suppression hearing, defendant told yet a different story, claiming that nearly everything in the two July 30th statements was a lie, and that he had simply parroted a memorized version of the crime given to him by Sergeant Kozicki.
At trial, defendant took the stand and suggested his original story on June 4th blaming Thomas was the accurate one. He was very evasive, refusing to answer several questions, claiming that both he and his mother had received threats. Warned that his entire testimony could be stricken, he nevertheless refused to answer some questions. He eventually testified that after giving the June 4th statement, word of his statement got out on the street and Dee Thomas threatened his life. Defendant explained that, with the help of a woman named Tanya, he had moved his mother from the Cole Street house to a safer location, although he later admitted his mother had to move because the house was boarded up. Defendant also testified that Johnson had threatened him and let it be known in jail that defendant was a snitch. When asked what happens to snitches in jail, defendant replied: "They die." He admitted he was worried that his testimony would be reported to Johnson because Johnson's attorney was in the courtroom.
Defendant testified he had lied at the suppression hearing and disavowed his prior claim that Sergeant Kozicki had told him what to say. He claimed he lied because Johnson was present at the hearing and he was afraid for his life. He also testified his statements on July 30th were all lies. When asked whether his June 4th statement (blaming Dee Thomas) was the truth, he replied in the affirmative. When asked whether "everything" he had said on June 4th was true, he turned evasive, saying, "I can't really say." The following colloquy then occurred:
"Q. Okay. You mentioned that the exchange that took place between Dee and his friend went down as: Let me see the gun, give me the gun.
"Is that the truth or a lie?
"A. I'm not going to answer that due to the fact that I might be a dead man if I answer.
"Q. A dead man from whom?
"A. In jail or on the streets, wherever. [¶] ... [¶]
"Q.... You say your life is in danger because you confessed to two murders and you basically said Antoine [Johnson] just did the shooting in the house and you did all the killing out in the streets.
*579 "A. No, that's not the reason why my life [is] in danger. The reason why my life is in danger is because of the first statement.
"Q. Because of the first statement?
"A. Yes, it is.
"Q. When you blamed Dee and his friend?
"A. Yes."
Later, the defense called Earl Turner to the stand. Turner testified he had grown up with, and was a close friend to, Johnson. He also had known Dee Thomas for about two years. While Defense Counsel Cannady was questioning Turner, the following exchange occurred:
"Q.... Did [Dee] ever threaten you?
"A. Yes, we have gotten into arguments before.
"Q. And what was that argument over?
"MS. DRABEC [the prosecutor]: Objection, irrelevant.
"THE COURT: Sustained.
"MR. CANNADY: May we approach, your Honor?
"THE COURT: Mr. Dee is not on trial here, sir.
"MR. CANNADY: I understand that, your Honor.
"THE COURT: No need to approach. Ask him a relevant question and he may answer."
Later, defendant called Latonya Jackson to the stand, presumably to corroborate his claim that he had asked her to help his mother, Marcia Surrell, move from the Cole Street house due to threats of violence. Jackson testified she had helped Surrell move to her home after the crimes, but when she was asked whether Surrell "indicate[d] ... anything about being concerned for her safety," the trial court sustained the prosecutor's hearsay objection.
The defense rested shortly thereafter. That afternoon, the defense moved to reopen, explaining they had found defendant's mother, Marcia Surrell, and wished to call her to corroborate defendant's claim that she had been threatened and had moved from the Cole Street house as a result of those threats. The trial court questioned the relevance of such testimony and the parties discussed the matter. Eventually, the trial court ruled the defense could reopen its case and that Surrell could testify, not as to specific threats, but that she was afraid of Johnson.
Surrell then testified and affirmed she was defendant's mother and that she had lived at the Cole Street house. She knew Johnson and had seen him with a gun. Asked whether a man named "Dee" visited the house, she replied: "There was a couple of Dee's. There was two people that was—that called their self Dee that came over there." Defense counsel never asked her if she was afraid of Johnson.
b. Discussion
Defendant claims his constitutional rights to due process, to present a defense, to confront the evidence against him, and to a reliable and nonarbitrary determination of guilt were violated by the trial court's evidentiary rulings. (U.S. Const., 5th, 6th, 8th & 14th Amends.) His attempt to inflate garden-variety evidentiary questions into constitutional ones is unpersuasive. "As a general matter, the `[application of the ordinary rules of evidence ... does not impermissibly infringe on a defendant's right to present a defense.' [Citations.] Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's *580 due process right to present a defense. [Citation.] If the trial court misstepped, `[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' [Citation.] Accordingly, the proper standard of review is that announced in People v. Waison[, supra,] 46 Cal.2d 818 , 836 ... and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension ( Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct. 824, 828 , 17 L.Ed.2d 705, 710-711 , 24 A.L.R.3d 1065 ])." ( People v. Fudge, supra, 7 Cal.4th at pp. 1102-1103, 31 Cal.Rptr.2d 321 , 875 P.2d 36 .)
The exclusion of Earl Turner's testimony concerning the subject of his arguments with, and possible threats by, Dee Thomas was proper. "`Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid.Code, § 210; see also id., § 350 ["No evidence is admissible except relevant evidence"].) Whether or not Thomas had ever threatened Turner had no tendency to prove whether or not Thomas had threatened defendant. Accordingly, the trial court correctly sustained the prosecutor's relevancy objection.
Whether Latonya Jackson had heard defendant's mother express a concern for her safety requires a different analysis. "`Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid.Code, § 1200, subd. (a).) The evidence defendant sought to elicit from Jackson arguably was offered for its truth, i.e, that Surrell was in fact concerned for her safety. This would lead to the inference that Johnson (or Dee Thomas) actually had threatened Surrell, thereby tending to support defendant's assertion at trial that he and his family were threatened, thus explaining why he changed his story. Because defendant's questioning of Jackson sought evidence of a statement made by Surrell that was offered for its truth, the trial court properly sustained a hearsay objection. Even assuming for argument that the court erred, no prejudice resulted. Defendant was, of course, free to ask Surrell herself whether she was concerned for her own safety. He did not do so. Moreover, he admitted on cross-examination that his mother had moved from the Cole Street house because it had been boarded up, not (as he had claimed) because of threats. We thus find no error and no prejudice.
Finally, defendant contends the trial court improperly limited his questioning of Marcia Surrell, prohibiting questioning about specific threats. We agree. Evidence of specific threats would have corroborated defendant's testimony that he and his family had been threatened, thus persuading him to change his story from blaming Dee Thomas for the shootings to accepting blame himself for fear of retaliation from Johnson. Moreover, evidence of threats would not have been barred by the hearsay rule, for such evidence would not have been offered for its truth (i.e, that Thomas or Johnson actually intended to retaliate against defendant or his family), but for a different purpose: to show the effect of the statements on defendant. (See, e.g., People v. Jackson (1991) 235 Cal.App.3d 1670, 1680-1681 , 1 Cal.Rptr.2d 778 [evidence of threat admitted for the nonhearsay purpose of showing consciousness of guilt].) The trial court *581 thus erred in ruling this evidence was not relevant.
Although the trial court erred, the error was harmless. Defendant was allowed by the trial court to ask Surrell whether she was afraid of Johnson, but he did not do so. Moreover, his many changes of story were inherently incredible and the evidence of his guilt overwhelming, from Guillory's eyewitness testimony identifying defendant, to David Brooks's testimony that he saw someone of defendant's build standing over one of the victims, to the forensic evidence matching the scenario provided by defendant's July 30th statements. We thus conclude "it is [not] reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." ( People v. Watson, supra, 46 Cal.2d at p. 836 , 299 P.2d 243 .)
6. Failure to Answer Juror's Question
During the presentation of the defense case, the trial court received a note from a juror. [8] The juror asked four questions: "How can a homeless person obtain such private lawyer[s] or are the [defense attorneys] court appointed? [¶] [Regarding] the neighbor who lived 4 houses up the street[,] describe the size of the person he saw standing in the street or over (near) the body (sml, med, lrg) short or tall. [¶] [Is t]his blind person being tried also or what[?] [¶ ] Did the person on trial [take,] or is he willing to take[,] a lie detector testl?]"
Out of the presence of the jury, the parties discussed the note. As to the question about defendant's alleged homelessness, the trial court proposed not to answer the question, explaining: "That's really none of his business, so we're not going to comment on that." As to the second question regarding David Brooks, the neighbor, and his description of the perpetrator, the parties could not agree on a stipulation and the prosecutor eventually resolved the matter by calling Brooks to the stand on rebuttal. Brooks then testified the figure he saw from a distance standing over the body was smaller than a 300-pound neighbor and "fits into [the] category" of defendant's physique. As to the third question, the trial court informed the parties that the jury had been and would again be instructed that Johnson would be tried separately and that it should not concern itself with that subject. Finally, as to the fourth question, the trial court simply stated that the question of lie detectors was none of the jury's business.
Defendant contends the trial court's failure to answer any of the juror's questions violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution by depriving him of his rights "to due process, to a fair trial by an impartial jury, to a jury trial, to confront the witnesses against him, and to a reliable determination of guilt beyond a reasonable doubt and a reliable, individualized, and non-arbitrary and capricious sentencing determination." When the trial court proposed its decision not to respond to the juror's note, however, defendant did not object. He thus failed to preserve the issue for appeal and, indeed, may be held to have given tacit approval of the trial court's decision. (Cf. People v. Kageler (1973) 32 Cal.App.3d 738, 746 , 108 Cal. Rptr. 235 [failure to object to trial court's *582 answer to a jury question waives claim that the answer violated § 1138].) [9]
Defendant alternatively argues his counsel were constitutionally ineffective for failing to object. "`[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness ... under prevailing professional norms." ( Strickland v. Washington (1984) 466 U.S. 668, 687-688 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 ....) Second, he must also show prejudice flowing from counsel's performance or lack thereof. ( Strickland, supra, at pp. 691-692 , 104 S.Ct. 2052 ....) Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."'" ( In re Avena (1996) 12 Cal.4th 694, 721 , 49 Cal.Rptr.2d 413 , 909 P.2d 1017 .)
We reject defendant's contention that his counsel were ineffective for failing to object, because even assuming counsel's inaction was unreasonable, no prejudice resulted. (See People v. Padilla (1995) 11 Cal.4th 891, 936 , 47 Cal.Rptr.2d 426 , 906 P.2d 388 , overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 , 72 Cal.Rptr.2d 656 , 952 P.2d 673 [appellate court need not determine whether counsel's performance was deficient if there was no prejudice].)
Defendant first argues that the first question concerning his alleged home-lessness went to his credibility, a key factor in the case. If he was lying about being homeless, he claims, the jury was more likely to disbelieve the rest of his testimony. When his mother, Marcia Surrell, testified, however, she clarified his living status, explaining that defendant was staying with a friend and that both she and defendant's grandmother helped to support him financially. We presume this accurately reflected defendant's living situation. Failure to object to the trial court's inaction with regard to the juror's first question was thus harmless.
As noted above, the juror's concern over Brooks's description of the person he saw standing over the body was clarified by the witness's rebuttal testimony. Failure to object to the trial court's inaction with regard to the juror's second question was thus also harmless.
As to the juror's concern over the fate of Antoine Johnson, the jury was instructed that Johnson's case had been severed and that Johnson would be tried separately. The jury was specifically instructed: "[D]o not discuss or give any consideration as to why the other persons are not being prosecuted in this trial or whether they have been or will be prosecuted." Just before deliberations commenced, that instruction was repeated. In addition, the jury also was instructed: "As I told you before, the trial of Antoine Johnson has been severed from the trial of Maurice Boyette and Johnson's trial will take place after this trial ends." We assume the jury followed these instructions. ( People v. Mickey (1991) 54 Cal.3d *583 612, 689, fn. 17, 286 Cal.Rptr. 801 , 818 P.2d 84 .) Defense counsel's failure to object to the trial court's inaction with regard to the juror's third question was thus harmless.
Finally, with regard to the juror's concern about lie detector tests, the trial court instructed the jury to decide the case on the evidence provided and not to "consider or discuss facts as to which there is no evidence." Once again, we assume the jury followed this instruction and that the curious juror abandoned his concern over the lack of lie detector evidence. Defense counsel's failure to object was thus harmless.
Finding no prejudice flowing from defense counsel's failure to object to the trial court's decision not to respond to the juror's midtrial note, we conclude counsel were not constitutionally ineffective by failing to object and that defendant may fairly be held to have forfeited the issue on appeal.
7. Alleged Prosecutorial Misconduct
As explained more fully below, defendant contends the prosecutor committed misconduct on numerous occasions during closing argument. He admits, however, that he did not object to any of these instances of alleged misconduct or request that the jury be admonished. Unless he was excused from objecting, defendant did not preserve any of these objections for presentation on appeal.
There are two exceptions to the general rule of forfeiture, and defendant invokes them both. First, defendant argues the futility exception applies here. "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if'"an admonition would not have cured the harm caused by the misconduct."' [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if `the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' [Citations.]." ( People v. Hill, supra, 17 Cal.4th at pp. 820-821, 72 Cal.Rptr.2d 656 , 952 P.2d 673 .)
Defendant claims that several of the trial court's prior rulings disagreeing with positions taken by defense counsel suggest any objection to prosecutorial misconduct would have been futile. Although it is theoretically possible a trial court could be so biased against a defendant—as evidenced by prior rulings—that an appellate court might reasonably conclude further objections would have been futile, such is not the case here. An objection and a request for admonition would have allowed the trial court to remedy any unfairness occasioned by the prosecutor's argument, avoiding any potential harm. We perceive nothing in the record suggesting that an objection to any of the alleged instances of misconduct would have been futile. (See generally People v. Dennis (1998) 17 Cal.4th 468, 521 , 71 Cal.Rptr.2d 680 , 950 P.2d 1035 .)
Defendant also argues that interposing an objection to the alleged misconduct would have been futile because an objection would simply have called attention to the prosecutor's improper comments, increasing the harm already done. This exception, of course, would swallow the rule requiring a timely objection and request for admonition, for one always runs the risk of drawing the jury's attention to an improper line of argument by registering an objection. The mere concern *584 of highlighting alleged misconduct by objecting, without more, cannot serve as an exception to the general rule requiring an objection and request for an admonition. We conclude defendant's reliance on the futility exception must be rejected.
As a second (and more familiar) reason why we should find he preserved the issue of the prosecutor's alleged misconduct for appeal, defendant claims his counsel were constitutionally ineffective for failing to have made timely objections and requests for admonitions. As we have noted repeatedly, the mere failure to object rarely rises to a level implicating one's constitutional right to effective legal counsel. ( People v. Williams (1997) 16 Cal.4th 153, 221 , 66 Cal.Rpta.2d 123, 940 P.2d 710 .) Here, as we explain, with one small exception (which was harmless), a review of the record reveals no misconduct on the part of the prosecutor, and thus counsel cannot be faulted for failing to object.
a. Expressing personal belief in the credibility of witnesses
Defendant first contends the prosecutor vouched for the credibility of her witnesses. Not so. Although a prosecutor may not personally vouch for the credibility of a witness, a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case. ( People v. Stansbury (1993) 4 Cal.4th 1017, 1059 , 17 Cal.Rptr.2d 174 , 846 P.2d 756 , revd. on other grounds sub nom. Stansbury v. California (1994) 511 U.S. 318 , 114 S.Ct. 1526 , 128 L.Ed.2d 293 .) Here, although the prosecutor argued Guillory was credible, she did so in the context of his being an eyewitness to the crime and argued that aspects of his testimony suggested he was telling the truth. This was permissible argument.
Defendant also complains that the prosecutor argued Dee Thomas and his sister had no motive to lie about Thomas's whereabouts on the night of the shootings. We disagree that this line of argument suggested the prosecutor was privy to undisclosed information and thus constituted improper vouching for Thomas's credibility. It was, instead, simply argument based on inferences from the evidence presented. (For example, the prosecutor argued that Thomas had no reason to lie to obtain leniency in his own unrelated case, because he had already pleaded guilty and was serving his sentence in that case.)
Defendant contends the prosecutor repeatedly called him a liar. This was a permissible argument. "The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence ... [and] to argue on the basis of inference from the evidence that a defense is fabricated ( People v. Pinholster (1992) 1 Cal.4th 865, 948 , 4 Cal. Rptr.2d 765 , 824 P.2d 571 .) Defendant admits the evidence was conflicting concerning those issues the prosecutor argued defendant lied about (e.g., his alleged homelessness, the alleged threats from Johnson). From this evidence, the prosecutor was thus permitted to argue that defendant was less than truthful.
Defendant asserts the prosecutor improperly, implied that his testimony required corroboration. He also claims the prosecutor's argument improperly shifted the burden of proof to him. We disagree. The prosecutor argued that defendant had lied when he claimed he had been placed in protective custody due to threats on his life in jail. In support, the prosecutor argued: "You heard no corroboration of that." Read in context, the prosecutor was merely making the permissible argument that defendant had failed "`to introduce material evidence or to call logical witnesses'" ( People v. Fierro (1991) *585 1 Cal.4th 173, 213 , 3 Cal.Rptr.2d 426 , 821 P.2d 1302 ) to support his story of being threatened in jail. In other words, the prosecutor's argument was that defendant's version of events was less believable because there was no corroboration from other sources, not that the jury was legally prohibited from crediting his testimony in the absence of corroboration, or that he had failed to meet a burden of proof.
Defendant argues that the prosecutor committed misconduct by commenting on his demeanor in the courtroom, suggesting he had been affecting a pleasant attitude to deceive the jury. The prosecutor stated: "[Defendant is a v]ery remorseless, cold-blooded individual.... Remember, appearances can be very deceiving and he's been working on you. He has been working on you, watching you come and go, smiling and waving when he's introduced to you. Appearances, ladies and gentlemen, can be very deceiving."
As defendant contends, comment during the guilt phase of a capital trial on a defendant's courtroom demeanor is improper ( People v. Heishman (1988) 45 Cal.3d 147, 197 , 246 Cal.Rptr. 673 , 753 P.2d 629 ) unless such comment is simply that the jury should ignore a defendant's demeanor ( People v. Stansbury, supra, 4 Cal.4th at p. 1058 , 17 Cal.Rptr.2d 174 , 846 P.2d 756 ). "In criminal trials of guilt, prosecutorial references to a nontestifying defendant's demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant's light not to testify. (3) Consideration of the defendant's behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character." ( People v. Heishman, supra, at p. 197 , 246 Cal.Rptr. 673 , 753 P.2d 629 .)
In this case, the prosecutor's comments were ambiguous. To the extent she was simply urging the jury to disregard defendant's demeanor, there was no misconduct. To the extent she was instead suggesting that the jury should find defendant was duplicitous based on his courtroom demeanor, she committed misconduct. Defendant, of course, chose to testify, reducing any harm to his Fifth Amendment rights. Moreover, the prosecutor's comment was brief and fleeting, further reducing the possibility of prejudice. In light of the ample evidence both of defendant's lack of credibility and of his guilt, we conclude that, even assuming counsel were remiss in failing to object, no prejudice ensued.
b. Misstating the law and facts
Defendant next contends the prosecutor committed misconduct by misstating the law and facts of the case. Although it is misconduct for the prosecutor to misstate the applicable law ( People v. Marshall (1996) 13 Cal.4th 799, 831 , 55 Cal.Rptr.2d 347 , 919 P.2d 1280 ) or the facts ( People v. Dennis, supra, 17 Cal.4th at p. 522, 71 Cal.Rptr.2d 680 , 950 P.2d 1035 ), the record reveals no transgression of this rule. For example, defendant complains of the prosecutor's argument that— if the jury believed Guillory's testimony— defendant was "guilty as charged." This essentially was true. Although defendant argues that Guillory did not actually see him shoot the victims, Guillory testified that he saw defendant grab the gun and run after the victims. He then heard the shots and, moments later, after he emerged from the Cole Street house, he saw defendant, still holding the gun, standing over Carter's lifeless body. The prosecutor's argument reasonably may be understood *586 to mean that defendant was guilty if the jury believed Guillory's testimony and all the reasonable inferences drawn therefrom.
Defendant also argues that the prosecutor committed misconduct by equating premeditation with "cold-bloodedness" and "malice." We disagree that the prosecutor misstated the law. She first told the jury that defendant had shot Devallier twice as she looked him in the eye and begged for her life. The act, argued the prosecutor, "is so heinous, that is so cold-blooded, ... that is such an intent to kill, and the law has a word for intent to kill. And it is called malice. And the laws says if you have an intent to kill before you commit the act, which is like pulling a trigger or stabbing, whatever, it is called malice aforethought, and you're in [for] murder." The prosecutor also argued that lying in wait was a substitute for malice. "The law says lying in wait is so serious, so heinous, that it is automatically first degree. It is never second degree. [¶] It is a substitution for malice."
We perceive no misstatement of law. "Murder is the unlawful killing of a human being ... with malice aforethought." (§ 187, subd. (a).) "All murder which is perpetrated by means of ... lying in wait ... or by any other kind of willful, deliberate, and premeditated killing ... is murder of the first degree." (§ 189.) "[P]roof of lying-in-wait ... acts as the functional equivalent of proof of premeditation, deliberation and intent to kill." ( People v. Ruiz (1988) 44 Cal.3d 589, 614 , 244 Cal.Rptr. 200 , 749 P.2d 854 .) The prosecutor merely argued that, to kill Devallier under these circumstances, defendant must have intended to do so and thus killed with malice aforethought. Although defendant argues the prosecutor erroneously stated that lying in wait is a substitute for malice (instead of premeditation and intent to kill), there is no functional difference in these circumstances: if the jury found defendant lay in wait and thus necessarily premeditated and intended the killings, his argument that he nevertheless lacked malice is—on these facts—untenable. In any event, the trial court properly instructed the jury on the law, and we presume the jury followed those instructions. Indeed, the jury was instructed that, to the extent the law as given by the trial court conflicted with the description of the law as given by the attorneys, the jury was to follow the court's instructions.
c. Inflaming the jury
Defendant next contends the prosecutor committed misconduct by misstating facts, relying on facts not in evidence, and generally inflaming the passions and fears of the jury. Thus, defendant contends the prosecutor stated—without any support in the record— that defendant killed the victims for money, that people are often killed on the streets of Oakland, and that one often reads about remorseless "teenage kids" intending to kill people. That defendant killed two people who had stolen $3,500 worth of drugs and $1,000 in cash from Johnson, a drug dealer, and thus expected some remuneration from Johnson, was a reasonable inference from the evidence. Defendant admitted that Johnson had provided him with food and clothes. The balance of the challenged comments was mere rhetoric that was not objectionable.
d. Encouraging holdout jurors to capitulate
Defendant contends, finally, that the prosecutor committed misconduct by encouraging holdout jurors to capitulate to the majority. The law requires each juror's independent vote, and "`[u]nanimity *587 obviously requires that each juror must vote for and acquiesce in the verdict. Acquiescence simply because the verdict has been reached by the majority is not an independent judgment, and if permitted, would undermine the right to a unanimous verdict.'" ( People v. Gainer (1977) 19 Cal.3d 835, 849 , 139 Cal.Rptr. 861 , 566 P.2d 997 , quoting People v. Superior Court, (Thomas) (1967) 67 Cal.2d 929, 932 , 64 Cal.Rptr. 327 , 434 P.2d 623 .)
The prosecutor's argument did not violate this principle. She argued the evidence of guilt was quite strong, "[a]nd if there is one of you who can't see what happened in this courtroom, you're [sic ] intelligence should be absolutely insulted by all the lying that's gone on here, if one of you can't see that, you[`d] better step back, take a deep breath, think about your common sense and listen to your fellow jurors, because you are not seeing the forest through the trees, if you can't see this case. It is overwhelming." As shown, the prosecutor did not exhort holdout jurors to submit to the majority's views, but argued the evidence of guilt was so strong that if any juror had doubts, they should step back and use their common sense. The exhortation to "listen to your fellow jurors" in this context meant to listen to the arguments of one's fellow jurors. We find no misconduct.
In sum, save a trivial and harmless comment asking the jury to consider defendant's courtroom demeanor off the witness stand as evidence of his duplicity, which we find nonprejudicial, we find no misconduct. Because defense counsel cannot be considered ineffective for failing to make groundless objections or for failing to make objections to misconduct causing defendant no harm, we further find defendant failed to preserve these claims for appeal.
8. Guilt Phase Instructions
Defendant contends a number of instructions given to the jury at the guilt phase were incorrect and violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
a. Reasonable doubt
Defendant argues that CALJIC No. 2.90, the standard jury instruction on proof beyond a reasonable doubt given in this case, is faulty because it fails adequately to explain the meaning of the concept of reasonable doubt. [10] As defendant concedes, we have rejected his precise argument ( People v. Seaton (2001) 26 Cal.4th 598, 668 , 110 Cal.Rptr.2d 441 , 28 P.3d 175 ), as well as his further arguments that certain other instructions that use the term "reasonable" also reduce or dilute the prosecution's burden of proof or constitute an impermissible mandatory presumption ( People v. Mendoza (2000) 24 Cal.4th 130, 181 , 99 Cal.Rptr.2d 485 , 6 P.3d 150 ; People v. Crittenden, supra, 9 Cal.4th at p. 144 , 36 Cal.Rptr.2d 474 , 885 P.2d 887 ). He *588 provides no reason to believe our previous decisions on this point were incorrect.
b. Consciousness of guilt
The trial court instructed the jury with CALJIC Nos. 2.03, 2.06 and 2.52, the pattern instructions for inferring a consciousness of guilt from the making of false or misleading statements, from the suppression of evidence, and from flight after the crime. [11] Defendant contends these three jury instructions were improper because they were misleading, were not supported by the evidence, and were improper pinpoint instructions lessening the prosecution's burden of proof. Defendant objected to CALJIC Nos. 2.06 and 2.52, but joined the prosecutor in asking for CALJIC No. 2.03. Although normally this would constitute invited error precluding challenging the instruction on appeal ( People v. Hardy (1992) 2 Cal.4th 86, 152 , 5 Cal.Rptr.2d 796 , 825 P.2d 781 ), we agree with defendant that the record demonstrates no obvious tactical reason why defense counsel wished to have the jury instructed that evidence that defendant gave willfully false or misleading statements could be used to infer a consciousness of guilt. Accordingly, we do not find invited error as to CALJIC No. 2.03. ( People v. Duncan (1991) 53 Cal.3d 955, 969 , 281 Cal.Rptr. 273 , 810 P.2d 131 .)
Turning to the merits, defendant admits his complaints about CALJIC Nos. 2.03, 2.06 and 2.52 have been rejected in another case. Thus, in People v. Jackson (1996) 13 Cal.4th 1164, 1224 , 56 Cal. Rptr.2d 49 , 920 P.2d 1254 , referring to these instructions, we stated: "[E]ach of [these] instructions made clear to the jury that certain types of deceptive or evasive behavior on a defendant's part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant's guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.] We therefore conclude that these consciousness-of-guilt instructions did not improperly endorse the prosecution's theory or lessen its burden of proof and thus were not improper pinpoint instructions.
It is unclear why defendant contends these instructions were misleading. To the extent he claims the instructions improperly allowed the jury to draw inferences that would have been rebutted by defense evidence excluded by the trial court, we reject the notion because, as we *589 explained, ante, at 578-581, 58 P.3d at 419-22 , the trial court did not err in excluding the testimony of Earl Turner and Latonya Jackson.
We also find the instructions were supported by substantial evidence. There was evidence from which the jury could conclude defendant made numerous false statements to police, that he coordinated a story with Johnson to blame Thomas for the crimes, and that after the killings he engaged in flight with Guillory, Johnson, Banks and Cook.
We conclude the challenged instructions were proper and that they did not violate any of defendant's constitutional rights.
9. Validity of Special Circumstances
a. In general
The Eighth Amendment to the United States Constitution requires that the 1978 death penalty law serve a narrowing function to "circumscribe the class of persons eligible for the death penalty." ( Zant v. Stephens (1983) 462 U.S. 862, 878 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 .) This function is performed by the requirement that a capital jury sustain at least one statutorily enumerated special circumstance. ( People v. Bacigalupo (1993) 6 Cal.4th 457, 467-468 , 24 Cal.Rptr.2d 808 , 862 P.2d 808 .) Defendant contends the law contains so many special circumstances that it fails to provide the constitutionally required narrowing function and thus violates the Eighth Amendment by permitting the death penalty to be imposed in an arbitrary and unpredictable fashion. ( California v. Brown (1987) 479 U.S. 538, 541 , 107 S.Ct. 837 , 93 L.Ed.2d 934 ["The Constitution instead requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion"].)
We have held many times that the 1978 law is constitutional. Specifically, as defendant concedes, we have rejected the claim that the number of special circumstances set forth in section 190.2 fails to provide sufficient narrowing of the deatheligible class. ( People v. Bolin (1998) 18 Cal.4th 297, 345 , 75 Cal.Rptr.2d 412 , 956 P.2d 374 .) Because we conclude the 1978 law is sufficiently narrow to satisfy the Eighth Amendment, we reject defendant's further argument that there is "[b]lanket eligibility for the death sentence" in violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
b. Multiple-murder special circumstance
Defendant also contends the multiple-murder special circumstance in section 190.2, subdivision (a)(3) is impermissibly overbroad. He argues the provision permits an impermissibly wide range of culpable behavior to become grounds for imposing the death penalty. For example, he claims that a defendant convicted of two accidental murders, or two felony murders in circumstances lacking express malice, would qualify for a multiple-murder special circumstance and thus be eligible for the death penalty, although another defendant, convicted of a single cold-blooded and premeditated murder would not be so eligible, though he may be more morally blameworthy.
Defendant did not commit two accidental murders or two murders lacking malice. In any event, categorizing as especially deserving of the ultimate penalty those offenders who kill two or more victims in one criminal event is not arbitrary, unfair or irrational, and performs the necessary narrowing of the pool of potential offenders required by the Eighth Amendment *590 to the United States Constitution. We have so held ( People v. Box (2000) 23 Cal.4th 1153, 1217 , 99 Cal.Rptr.2d 69 , 5 P.3d 130 ), and defendant does not persuade otherwise.
II. Penalty Phase A. Facts
1. Aggravating Evidence
The People presented evidence from the families of the victims to show the effect the deaths had on their families. Alvarez Devallier, Annette's father, testified and related how close he was with the victim, how her eight-year-old son had said he wanted to die so he could be with his mother, how her six-year-old son had nightmares and would telephone wanting to know where his mother was, and how Annette had been in a drug rehabilitation program and had turned her life around. He identified a photograph of Annette's four-year-old daughter, but admitted he did not see her very often. On cross-examination, he admitted she had had a problem with cocaine addiction, that as a result her children did not live with her, and that she recently had left the rehabilitation program. He admitted he did not know she was under the influence of cocaine on the night she was killed.
Alvarez Devallier, Jr., Annette's brother, testified he had been very close to his sister until about a year before she was killed, when they went "different ways." He testified he dreamed about her "a lot." Annette's grandmother, Moezelle Lake, testified she "partially raised" Annette and that Annette was very helpful to her as she got older and had greater difficulty getting around. Lake stated, "she was a friend to all, to young and old alike" and is "greatly missed."
Brad Elliot was Gary Carter's brother-in-law. Elliot described Carter's family as large and very close. When asked how Carter's death had affected the Carter family, he replied: "Devastating doesn't even really touch it." Elliot's wife, Yolanda, is Carter's sister, and she wakes in the middle of the night crying about Carter's death. She had problems at work as a result of the killing. Carter's oldest brother was so distraught by the slaying that he moved from the area. Yolanda Elliot testified herself and confirmed that, following the slaying, she had difficulty sleeping, was depressed all the time, and was in therapy. She said she had lost a lot of weight and had had trouble caring for her son.
Two more of Carter's sisters also testified and expressed how Carter's death had affected them. One, Antonea Brown, described how their father had an especially hard time dealing with his son's death: "It's to the point where he can't even look at us, his kids any more, because he—he said it was so painful for him to lose Gary, just the idea of losing another child, he just doesn't want to be ... around us any more."
Carter had three children, and one of them, his 15-year-old daughter, Laveone Carter, testified. She stated she had nightmares following the killing and that her brother was too upset to come to court to testify. Her sister now got angry over little things and stared at their father's picture and cries.
The prosecutor closed the case in aggravation by noting that defendant had stipulated to having suffered two prior drugrelated felony convictions.
2. Mitigating Evidence
Defendant began his presentation at the penalty phase by calling three mental health experts to the stand. Dr. Fred Rosenthal, a psychiatrist, testified that defendant had no diagnosable mental disorder or psychosis but was too young to *591 allow the observation of a full-blown mental disease. Dr. Rosenthal found that defendant suffered from emotional problems in that he was a very immature, passive and dependent person who had difficulty making independent decisions. He was easily influenced by peer pressure, very vulnerable, and sensitive to criticism. People with this emotional condition will gravitate to any strong leader for guidance. Although 20 years old, he functioned as a teenager both emotionally and intellectually.
Dr. William Lane Spivey, a psychologist, testified that he began seeing defendant in 1983 because he had been having adjustment problems at home and was not performing well in school. Dr. Spivey last saw defendant in 1988. He found defendant to be "a kid groping to grow up. Fairly low self-esteem, a lot of adjustment issues at school as well as in the family. It was a kid trying to find his identity at the time." Defendant was being raised by his grandmother, who loved him; he was very immature for his age and felt acutely the absence of his mother. Defendant spoke often of growing up and rescuing his mother in some way.
George Barrett has a master's degree in clinical psychology and works for Alameda County Mental Health Services, which takes court referrals when the court believes someone is having a mental or emotional problem. In this capacity, he examined defendant in 1991 when defendant was 18 years old. Barrett described defendant as "an 18 year old who speaks and thinks in the style of a 12 year old."
The defense then presented the testimony of several of defendant's relatives in mitigation. Tamika Harris, defendant's 17-year-old cousin, testified she had known and lived with defendant almost her entire life. She said kids teased him at school "because he was kind of heavy and bigger than the other kids." He would never start fights and was not the type to go out and cause trouble. She stated on cross-examination that her father and grandmother loved defendant very much and that he was not an abused child. Marlon Surrell, also defendant's cousin, testified he was raised in the same household as defendant. He tried to discourage defendant from associating with Antoine Johnson, but defendant would not listen.
Defendant's grandmother, Irma Surrell, testified that defendant had lived with her since he was two years old, although lately he had stayed with her only sporadically. He was like a son to her, and she loved him very much. She took him to see Dr. Spivey when he was young because "he had trouble with his mind and he wasn't making good connections with his mind." She raised defendant because his mother was addicted to drugs. His father, who rarely came to see defendant, died when defendant was 14. On cross-examination, the prosecutor asked whether she recalled an incident when defendant became angry with his mother and threatened to kill his grandfather and himself with a knife. She said she did not know anything about the incident and maintained that position after being shown a police report about the incident. She said defendant never told her he had killed anyone, and she did not know he had admitted to any murders.
Two of defendant's aunts, Celeste Surrell and Charmaine Adams, testified that they had helped their mother raise defendant because his mother was a drug addict, Celeste Surrell testified that defendant was not a disruptive child, but a passive one. Both women noted that defendant was concerned about his mother and would go check on her at the Cole Street house from time to time.
Eugene Surrell, defendant's grandfather, also testified and said that when defendant *592 was quite young, his mother took him to Sacramento while under the influence of drugs, left him at a house, and could not remember where the house was or with whom she had left him. It was at that time the decision was made to have his wife, Irma, raise defendant. He helped raise defendant, and defendant would often call him for advice. He denied that defendant had ever threatened him with a knife, but stated that he would sometimes throw temper tantrums. He affirmed that defendant was a follower and that much younger children would lead him around. He found kids leading defendant to a known drug-selling area in Berkeley; he tried to break up the arrangement, but found defendant there again a month later. A drug dealer was having defendant hold his drugs in his pocket while the dealer sold them.
B. Discussion
1. Victim Impact Evidence
Defendant contends that the extent and nature of the victim impact evidence admitted at the penalty phase of trial was improper. Prior to 1991, evidence of a murder's impact on a victim and the victim's family and friends was not admissible in the penalty phase of a capital trial. ( Booth v. Maryland (1987) 482 U.S. 496, 501-502 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 ; People v. Ochoa (1998) 19 Cal.4th 353, 455, fn. 9 , 79 Cal.Rptr.2d 408 , 966 P.2d 442 .) The federal high court later reversed itself in Payne v. Tennessee (1991) 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 ( Payne ), deciding that "[v]ictim impact evidence is simply another [form or method of informing the sentencing authority about the specific harm caused by the crime in question" ( id. at p. 825, 111 S.Ct. 2597 ) and was thus admissible evidence. We have followed the high court's lead ( People v. Taylor (2001) 26 Cal.4th 1155, 1171-1172 , 113 Cal.Rptr.2d 827 , 34 P.3d 937 ) and have also found such victim impact evidence admissible as a circumstance of the crime pursuant to section 190.3, factor (a) ( People v. Stanley (1995) 10 Cal.4th 764, 832 , 42 Cal.Rptr.2d 543 , 897 P.2d 481 ).
Because both defendant's crime and his trial occurred after Payne had been decided, his case is controlled by Payne . Because victim impact evidence is now admissible as a constitutional and a statutory matter, defendant clarifies his argument that the evidence was improper by asserting that the evidence was so inflammatory it tended to encourage the jury towards irrationality and an emotional response untethered to the facts of the case, rendering his trial fundamentally unfair under the due process clause of the Fourteenth Amendment to the United States Constitution. ( Payne, supra, 501 U.S. at p. 825 , 111 S.Ct. 2597 [leaving this avenue of relief open]; People v. Hardy, supra, 2 Cal.4th at p. 200, 5 Cal.Rptr.2d 796 , 825 P.2d 781 .)
We have reviewed the victim impact evidence admitted at the penalty phase of trial, together with the prosecutor's opening and closing arguments, and conclude the admission of the evidence did not surpass constitutional limits. Family members spoke of their love of the victims and how they missed having the victims in their lives. The prosecutor also introduced photographs of the victims while still alive. In her argument, the prosecutor emphasized the victim impact evidence, but also spoke of the relevance of the facts of the crime itself, as well as other aspects about defendant that (she argued) demonstrated why the death penalty was appropriate for him and a life sentence was not. The evidence was relevant and the argument appropriate. We find no danger that the jury's rationality was overborne and thus find no constitutional violation.
*593 Defendant argues that the trial court erred in ruling he would not be allowed to counteract the effect of the victim impact evidence by cross-examining family members to elicit evidence that showed the victims were not the cherished family members the witnesses claimed them to be. For example, the trial court upheld the prosecutor's objection when defendant attempted to elicit from Brad Elliot, Gary Carter's brother-in-law, that Carter had twice been sent to prison. The trial court ruled that defendant was improperly disparaging the victim's character. Defendant was able to establish, however, that Annette Devallier had left her rehabilitation program and was under the influence of cocaine at the time of her death.
There was no error and, in any event, no prejudice. Testimony from the victims' family members was relevant to show how the killings affected them, not whether they were justified in their feelings due to the victims' good nature and sterling character. Accordingly, defendant was not entitled to disparage the character of the victims on cross-examination. Even if we assume for argument that the trial court erred, there was no prejudice; the several family members who testified did so briefly and relatively dispassionately. The jury was aware from the evidence adduced at the guilt phase that the victims were probably drug addicts and were killed in a dispute at a disreputable house at which drug addicts congregated. In short, the jury already knew the victims were not upstanding citizens, so defendant's inability to emphasize this point in cross-examination could not have affected the penalty judgment. In concluding there was no error and no prejudice, we also reject the claims that the trial court's evidentiary rulings on this topic deprived defendant of his rights to due process, to a fair trial, to confront and cross-examine the witnesses against him, and to a reliable, individualized and nonarbitrary penalty determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.) Also, finding no error, we need not address defendant's further claim that "[t]he error was compounded because the jury was never instructed ... how to consider this evidence." (Italics added.)
In addition, defendant argues that the victim impact evidence admitted in this case was not relevant to a statutorily specified category of aggravating evidence and was thus error under state law despite Payne, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 . (See People v. Boyd (1985) 38 Cal.3d 762, 775 , 215 Cal.Rptr. 1 , 700 P.2d 782 [aggravating evidence limited to statutory categories].) We disagree. Such evidence was admissible under section 190.3, factor (a), which permits the jury to consider the circumstances of the crime. ( People v. Hardy, supra, 2 Cal.4th at p. 201, 5 Cal.Rptr.2d 796 , 825 P.2d 781 .) [12]
*594 2. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed various forms of misconduct in her opening and closing statements, and in cross-examining defense witnesses at the penalty phase. As explained below, many of the claims were not preserved for appellate review, and those claims that are properly before this court lack merit.
a. Future dangerousness/gang affiliation
Defendant first contends the prosecutor improperly argued in her opening and closing statements that, if spared the death penalty, defendant posed a danger to other inmates and to people employed in prisons. Defendant also claims the prosecutor committed misconduct in her cross-examination of Dr. Rosenthal when she suggested defendant would become a hit man for the Black Guerrilla Family (BGF), an African American prison gang.
The law is settled: expert testimony that a capital defendant will pose a danger in the future if his life is spared is inadmissible ( People v. Murtishaw (1981) 29 Cal.3d 733, 773-775 , 175 Cal.Rptr. 738 , 631 P.2d 446 ), but "prosecutorial argument regarding defendant's future dangerousness is permissible when based on evidence of the defendant's conduct rather than expert opinion" ( People v. Ervin (2000) 22 Cal.4th 48, 99 , 91 Cal.Rptr.2d 623 , 990 P.2d 506 ). Because expert evidence of future dangerousness is not barred by the United States Constitution ( Barefoot v. Estelle (1983) 463 U.S. 880, 896-903 , 103 S.Ct. 3383 , 77 L.Ed.2d 1090 ), we reject at the threshold defendant's claims that the prosecutor's argument and cross-examination denied him due process or his right to a reliable penalty determination under the Eighth Amendment to the United States Constitution.
We turn first to the prosecutor's opening remarks. She stated: "It is the People's position that the circumstances that I presented to you, the cold, calculated manner in which Mr. Boyette executed two people shows you that there is a strong likelihood that he would kill again. And you have to ask yourselves, do you want to put more families through that?" At this point, defense counsel objected, claiming this was "improper argument." The trial court impliedly overruled the objection, instructing the prosecutor to continue with her argument. She then concluded her opening remarks without revisiting the topic.
Although defendant preserved this claim for appeal, we find no misconduct, for the prosecutor's argument was based on the evidence presented or what she anticipated presenting. The evidence did indeed show that defendant killed two people in cold blood, including shooting Annette Devallier twice in the face at point-blank range as she begged for mercy. Relying on this evidence, the prosecutor was permitted to argue that defendant was a remorseless killer and that, having exhibited no twinge of conscience when he killed Devallier and Carter, he would likely kill again if allowed to live. Moreover, the victim impact evidence the prosecutor presented from the *595 victims' families supported her rhetorical question regarding the families of future victims.
Defendant also argues the prosecutor committed misconduct in her cross-examination of Dr. Rosenthal. During her cross-examination, the prosecutor attempted to elicit a concession that defendant's immaturity and dependent personality would make it likely that, if sentenced to life in prison, he would come under the influence of the BGF and be led to commit additional crimes in prison. Defense counsel objected that this was irrelevant, but it does not appear the trial court ruled on the initial objection, although it sustained a second objection that the questioning was argumentative. Dr. Rosenthal answered that he did not know very much about the BGF; that people suffering from defendant's condition do not necessarily need a gang for guidance; that defendant would gravitate toward any strong individual; and that to the extent the prosecutor was implying that defendant would be particularly susceptible to gang influence in prison, she may be "oversimplifying this situation." When asked directly whether, if defendant got "caught up" with the wrong crowd, they would influence him to commit crimes, Dr. Rosenthal replied: "I'm not saying that."
Respondent argues that defendant forfeited this claim for appeal because, although he objected, he failed to request that the jury be admonished. As he did for his claim of prosecutorial misconduct at the guilt phase, defendant contends we should excuse his failure to request an admonition because it would have been futile to do so and, if not, that his defense counsel were ineffective for failing to make the request. (See ante, at pt. LB.7.) As with his guilt phase claims, nothing in the record supports the conclusion that a request to admonish the jury would have been futile, nor that counsel's failure so to request was prejudicial so as to constitute ineffective assistance. We thus find the issue was not adequately preserved for our review.
Had defendant preserved this claim, we would find the prosecutor's questioning when cross-examining Dr. Rosenthal approaches, if not crosses, the line separating permissible from impermissible cross-examination. Had defendant elicited evidence that he lacked the capacity for future dangerousness, the prosecutor would have been entitled to cross-examine Dr. Rosenthal on that subject. ( People v. Earp (1999) 20 Cal.4th 826, 894 , 85 Cal.Rptr.2d 857 , 978 P.2d 15 ; People v. Ochoa, supra, 19 Cal.4th at p. 463, 79 Cal.Rptr.2d 408 , 966 P.2d 442 .) Defense counsel, however, did not ask the witness questions about defendant's future dangerousness. It thus appears the prosecutor's questions were an attempt to elicit prohibited expert evidence on future dangerousness.
Even assuming the prosecutor committed misconduct by asking Dr. Rosenthal to predict defendant's propensity for future violence, there was no prejudice because the witness did not agree with the implied premise of the prosecutor's line of questioning, replying that the prosecutor was "oversimplifying this situation" and that he was "not saying" defendant would necessarily become involved in prison gangs due to his dependent personality. The jury was instructed that "[statements made by the attorneys during the trial are not evidence" and that "[e]vidence consists of testimony of witnesses." We assume the jury followed these instructions.
Defendant also complains that the prosecutor returned to this allegedly improper theme in closing argument. Indeed, the prosecutor made this point repeatedly, arguing that Dr. Rosenthal "talks out of both sides of his mouth. *596 When it helps him, he's real plain, he goes along with the show, but as soon as I start mentioning gangs, because you know what I'm getting at, his likelihood of killing again, his future dangerousness. The perfect personality who could kill again." Defense counsel then objected, explaining, "there's no testimony as to gangs in this case." The court apparently overruled the objection, saying: "There is no evidence of gangs, no, [but] she's—as I understand, she's arguing his future dangerousness based upon the present evidence." The prosecutor continued: "You have to look at his future dangerousness. Is this a remorseful person who really blew it one night or is this a sociopath who's going to kill again?"
This exchange demonstrates that the prosecutor was not relying on any expert testimony but was arguing that the facts of the crime showed an absence of remorse and, from that absence, the jury could infer defendant was a threat to kill again. This was permissible argument. ( People v. Ervin, supra, 22 Cal.4th at p. 99 , 91 Cal.Rptr.2d 623 , 990 P.2d 506 .)
b. Use of hypothetical questions
Defendant next contends the prosecutor committed misconduct during her cross-examination of Dr. Rosenthal by asking him a series of hypothetical questions based on facts not in evidence. By employing this method of questioning, defendant claims the prosecutor placed before the jury information that was never admitted into evidence and which he had no opportunity to confront, thereby violating his constitutional rights to due process, a fair trial, to confront and cross-examine witnesses against him, and for a reliable penalty verdict. (U.S. Const, 5th, 6th, 8th & 14th Amends.)
Within limits, the law permits the examination of an expert witness with hypothetical facts. "Generally, an expert may render opinion testimony on the basis of facts given `in a hypothetical question that asks the expert to assume their truth.' (1 McCormick on Evidence (4th ed.1992) § 14, p. 58.) Such a hypothetical question must be rooted in facts shown by the evidence, however." ( People v. Garoleley (1996) 14 Cal.4th 605, 618 , 59 Cal.Rptr.2d 356 , 927 P.2d 713 .) "A hypothetical question ... may be `framed upon any theory which can be deduced' from any evidence properly admitted at trial, including the assumption of `any facts within the limits of the evidence,' and a prosecutor may elicit an expert opinion by employing a hypothetical based upon such evidence." ( People v. Sims (1993) 5 Cal.4th 405, 436, fn. 6 , 20 Cal.Rptr.2d 537 , 853 P.2d 992 ; see 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 194, pp. 258 260.) The hypothetical statement of facts posed to an expert witness need not be limited to evidence already admitted into evidence, "so long as it is material of a type that is reasonab

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2544386. Public record. Not legal advice.