People v. Rodrigues

8 Cal.4th 1060 (1994)

885 P.2d 1

36 Cal. Rptr.2d 235

THE PEOPLE, Plaintiff and Respondent,

v.

JOSE ARNALDO RODRIGUES, Defendant and Appellant.

Docket No. S007779.

Supreme Court of California.

December 1, 1994.

*1094 COUNSEL

Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Irene Kiebert and Joel Kirshenbaum, Deputy State Public Defenders, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Mathias, Gerald A. Engler and Joan Killeen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BAXTER, J.

Defendant Jose Arnaldo Rodrigues was convicted by a jury of one count of murder (Pen. Code, § 187), [1] two counts of attempted robbery (§§ 664, 211), and one count of burglary (§ 459). The jury found true the special circumstances that defendant committed the murder while engaged in the crime of robbery or attempted robbery (§§ 190.2, subd. (a)(17)(vii), 211), and while engaged in the crime of burglary (§§ 190.2, subd. (a)(17)(vii), 460). It also found true allegations that defendant personally used a knife in the commission of each offense (§ 12022, subd. (b)), and that defendant had previously served prison terms (§ 667.5, subd. (b)) for accessory to murder (§ 32) and auto theft (Veh. Code, § 10851). After the jury returned a penalty *1095 verdict of death, the trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)). Appeal to this court is automatic. (§ 1239, subd. (b).)

We find no prejudicial error at the guilt or penalty phase of defendant's trial. The judgment is affirmed in its entirety.

I. FACTS

A. Guilt Phase Evidence

1. The Prosecution Case

Epifanio Zavala testified that in May 1987, he was living with his older brother Juan Barragan in an apartment on the second floor of a two-story building at 1100 Sevier in Menlo Park. [2] Zavala was then 19 years old and Barragan was 21.

Although Zavala and Barragan previously worked in restaurants, they did not have jobs the first week of May 1987. Barragan sold small amounts of cocaine and heroin to help make a living. Zavala sometimes helped out by giving drugs to customers. One of those customers was Cynthia Ontiveros, [3] a heroin addict who had bought heroin from the brothers on several occasions.

Ontiveros testified to the following. Although she lived in Hayward with her boyfriend, Richard Lopez, she was in love with Juan Garcia. At approximately noon on May 4, 1987, Ontiveros left Hayward to buy some heroin from Zavala at his apartment. Zavala sold her approximately one gram of heroin for $100. [4] After telling Zavala she might come back, Ontiveros returned to Hayward. During the course of the day, Ontiveros injected about half of the heroin and sold the rest.

At approximately 5 p.m. that evening, Ontiveros was selling heroin in front of the El Tanampa bar on B Street in Hayward. Garcia drove up in defendant's car, with defendant in the passenger seat. [5] Garcia asked Ontiveros how he could make some money. Ontiveros told him not to worry about it, that she would find a way. She told Garcia to meet her at the bar later in the evening.

*1096 Garcia and defendant met Ontiveros at the bar after dark. Ontiveros told Garcia she had a connection from whom they could get drugs, and identified Zavala and Barragan because they were young and naive drug dealers who "weren't rough." Ontiveros had never seen the brothers with weapons and had never seen them use or threaten violence in their drug dealing. She thought Garcia and defendant could get drugs from them without a big fight.

Ontiveros, Garcia and defendant then planned how to get the drugs from Zavala and Barragan. They agreed that Ontiveros would go to the apartment first because the brothers knew her and would open the door for her. Once the door was open, Garcia and defendant would rush in and scare the brothers into giving up their drugs. Garcia asked Ontiveros if Zavala and Barragan had any weapons, and she responded that she had never seen any and did not think they had any. Ontiveros apparently thought that the brothers might be beaten or roughed up a little bit, but did not expect any further violence. Ontiveros, Garcia and defendant agreed to use defendant's car, a beige Lincoln, to drive to the brothers' apartment.

Sometime around 11 p.m., Ontiveros, Garcia and defendant arrived at the apartment. Garcia was dressed in black pants, black shoes and a black jacket. Defendant wore a beige long-sleeved jacket. Garcia, who was driving, stopped the car on Sevier Street, some seven or eight houses down from the apartment. Ontiveros went to find out who was in the apartment. It was agreed that Ontiveros would let Garcia and defendant know if the brothers were alone.

Ontiveros went upstairs to the apartment and knocked on the door. Zavala let her in. Once inside, Ontiveros saw Barragan asleep on the couch but did not see anyone else. Zavala told Ontiveros that he had not expected her to return, and that he had no more drugs. After some discussion, Zavala indicated he would give her some money for a "date" if she would stay. After agreeing to this, Ontiveros said she was going to tell her friend who was waiting for her in a car. Zavala walked downstairs with Ontiveros, then went to his own car and locked it while she kept walking. Zavala returned to the apartment and waited for Ontiveros.

After Zavala went upstairs, Ontiveros walked to defendant's car. She told Garcia and defendant that the brothers did not have any drugs, but that they did have money. When Garcia asked how much money, Ontiveros replied she did not know, but said they must probably have "a good amount" because Zavala had not yet bought more drugs. Ontiveros, Garcia and defendant agreed to proceed with the plan to rob the brothers, but to get money instead of drugs.

*1097 Garcia moved defendant's car to Madera, the next street over, and parked it approximately 20 to 30 feet from Pierce Road. Ontiveros walked to Madera and met Garcia and defendant there. She saw Garcia obtain an object that looked like a crowbar from the trunk of the car, [6] and noticed defendant had a large knife. The three walked together back to the apartment building.

As planned, Garcia and defendant went up the back stairs. Ontiveros walked up the front stairs, and knocked on the door. As Zavala let her in, she saw that Barragan was still sleeping on the couch. At that point, Garcia and defendant rushed into the apartment. Garcia hit Zavala with his tire iron and knocked him back onto Ontiveros. Ontiveros became scared and ran back to defendant's car. She waited in the front seat for several minutes until Garcia and defendant returned.

Zavala testified that once inside the apartment, Garcia struck at Zavala's head repeatedly with a tire iron, forcing him back into the apartment through the living room. Zavala yelled at Barragan to wake up. As Barragan stood up, Zavala saw the second attacker, who was wielding a knife in his left hand, hold his brother up against a wall. Zavala, who at this time was being held to the ground and beaten by Garcia, saw the second attacker trying to stab his brother in the face or throat. [7] After the attacker and Barragan fell to the floor during the struggle, the attacker reached over and stabbed Zavala in the left leg and right foot.

During the course of the attack, Garcia said to Zavala: "Calmate cabron, [?]donde la tienes?" According to Zavala, this translated in English to: "Calm down, damn it, where do you have it?" [8] Zavala answered with a lie, saying "it" was in the closet. He was hoping to have a chance to help his brother if the attacker went to look in the closet. After Zavala responded, however, the man with the knife told Garcia in English to "finish him too." Garcia stabbed Zavala in the back with the pointed end of the tire iron, penetrating to the bones. At that point, the telephone started ringing and the man with the knife said: "Well let's get out of here the police might going to come [ sic ]." As the two assailants fled from the apartment, Zavala could see that the one with the knife had an injured arm.

After the assailants left, Zavala answered the phone, which had continued to ring. The caller was Maria Vargas, a friend and neighbor from an apartment downstairs. Zavala told Vargas his brother was dead and to call the police.

*1098 Vargas testified that she immediately dialed 911 from a telephone located next to her bedroom window. As Vargas was reporting the murder, she saw two men come down the apartment stairway and pass by the window. Since a light had been shining on the stairway landing that night, Vargas saw the two men clearly enough to provide the following details. The first was a "dark man" who wore dark clothes, had blood on his left hand, and held his left arm down by his side with his right arm across his chest. After reaching the bottom of the stairs, the man stopped and looked through the window at Vargas and her daughter; he then hurried off toward Pierce Street. The second man was an Hispanic with light skin and straight hair. He was about four steps behind the first man as they came down the stairs. The second man also looked through the window at Vargas as he rushed by.

Vanessa Sturns lived in an apartment building next to 1100 Sevier. She testified that shortly after midnight on the morning of May 5, 1987, she got into her car and was beginning to drive to a liquor store when she saw two men in dark clothes climb over a fence into the backyard of her apartment building and walk to Madera. Sturns noticed the men because she had never seen anyone jump that fence before. Because the area was "nicely lit," she could tell that the two men were Hispanic, and that they were not "Black." Sturns was approximately one and a half car lengths from the men as she observed them. As Sturns drove off, she saw a car parked on Madera, about five houses up the street.

Ontiveros testified that when Garcia and defendant returned to the car, Garcia took the driver's seat and defendant sat in the passenger side. Defendant had a deep cut on his left forearm. Garcia had blood on his face and hands, but he was not injured. Defendant told Ontiveros to clean the blood off Garcia.

As they drove back to Hayward, defendant climbed into the backseat and lay down. He told Ontiveros to look straight and act normal. There was some discussion between Garcia and defendant about the knife, and as they approached a bridge, Ontiveros felt a rush of air as if the rear window had been rolled down. Although she did not see defendant throw the knife out, she did not see the knife in the car again. Ontiveros told defendant not to worry, she would not say anything about what had happened.

The three stopped for about half an hour in Hayward while Garcia changed his shirt and defendant changed his pants. Defendant also took his jacket off to wrap his arm, which was bleeding badly. Garcia stayed at that location, and Ontiveros dropped defendant off at his sister's house in Hayward. Ontiveros then drove to her place. The next day, pursuant to *1099 Garcia's instructions, Ontiveros washed the blood out of the interior of the car. Later on, defendant's brother, Raymond Rodriguez [9] (hereafter Raymond), came by and retrieved the car.

Defendant's sister Norma testified that at approximately 4:10 in the morning on May 5, 1987, defendant came to her house and told her he had been working on his car. He asked for a bandage and requested to be taken to Raymond's house in Oakland.

Raymond testified that defendant told him a transmission had fallen on his arm. He acknowledged, however, having testified at the preliminary hearing that although defendant told him to say that the transmission had fallen while the two of them were working on defendant's car, the two had not actually worked together on the transmission for a week or two before defendant's arm was injured. [10] When Raymond drove the car back from Ontiveros's place in Hayward, he had no trouble with the transmission. Raymond took defendant to Highland Hospital at 5:50 in the morning on May 5 to get his arm treated.

Dr. William Billings from Highland Hospital testified that although defendant stated that a transmission fell on his left arm, no dirt or grease was found in the wound. Also, the wound appeared to have been caused by a sharp instrument, rather than a blunt one, and was sufficiently clean that the surgery team was able to sew the tissue together fairly precisely and match a tattoo that had been split apart. Hospital records reflected that defendant was left-handed.

Officers arriving at the scene of the crime found Barragan lying dead on the floor with a massive pool of blood around his head and neck area. Barragan's chest was split wide open, and part of his face was hanging off. The officers saw Zavala rolling around on the floor in pain. Zavala had been severely beaten and his face was completely covered with blood. He was also missing several teeth. Zavala lapsed in and out of consciousness, sometimes screaming or moaning about his pain.

Zavala was taken to Stanford Hospital, where Detective James Simpson interviewed him at approximately 1:30 or 1:45 a.m. Zavala told him that two male Hispanic assailants and a female named Cyndia were involved. On or about May 17, 1987, Zavala picked Ontiveros out of a photo lineup.

*1100 Detective Ronald Williams testified that on May 6, 1987, Zavala described the knife wielder as being an Hispanic male adult, 23 to 24 years of age, 5 feet, 9 to 10 inches tall, 160 pounds, straight dark brown hair to his collar, and a very dark complexion. When Williams subsequently showed Zavala a photograph taken of defendant at the time of his arrest on May 28, 1987, Zavala said that the man in the photo looked Black to him, and that the skin tone and hair length in the photo closely resembled the knife wielder as he appeared the night of the murder. A citation issued to defendant on May 2, 1987, gave his weight as 170 pounds, and height as 5 feet, 8 inches tall.

On July 19, 1987, a search team found a survival-type knife alongside the freeway in the area where Ontiveros thought defendant had rolled down the rear car window as they drove from the crime scene. The knife had bloodstains both on its blade and hilt and on a capsule contained inside the handle. The knife blade was just short of nine inches, with a maximum width of one and one-half inches. Ontiveros, upon being shown the knife, immediately identified it as the one carried by defendant.

The forensic pathologist's autopsy of Barragan disclosed 21 stab and incise wounds consistent with infliction by a large knife-type instrument. Six of the wounds were to the face and head, one of which was a large, irregular, jagged wound in the lip that went through to the anterior part of the neck. There was a six-inch-deep wound in the right leg above the knee. One four-inch-deep stab wound in the chest had cut the rib cartilage in half and sliced the right lung, while another one five inches deep had also damaged the right lung. There was also a large, gaping, complex, eight-inch-deep wound, possibly caused by several thrusts through the same skin hole, that cut the right jugular vein in half and perforated the right lung. The location of the wounds to the torso and upper body was consistent with overhand-type thrusts. Of the 21 wounds, 17 were located on the right side of the body, while 4 were on the left; this was consistent with face-to-face stabbing by a left-handed assailant. The cause of death was loss of blood with air embolism.

Three bloody fingerprints, apparently made by the same finger, were found at the crime scene. They had an arch pattern found only in 5 percent of the population, and did not match the prints of the victims, the suspects or those persons whose presence at the scene was logged. [11] A smeared set of comparison prints for James Williams, a tenant in a nearby unit, showed an arch pattern, but Williams could not be located to make a further comparison.

*1101 An examination of defendant's car disclosed one of Garcia's fingerprints, but none of defendant's. However, on the back of the front seat backrest, police found a partial shoe print that had the same class characteristics as a pair of shoes belonging to defendant. Those shoes indicated the presence of blood in two spots.

Prosecution criminalist Elizabeth Skinner performed a blood-typing analysis, and determined that Zavala and Barragan both had type A blood, differing only in the EAP genetic marker system. Defendant and Garcia both had type O blood. In the TF (or transferrin) genetic marker system, defendant's type was CD, a type shared by less than 3 percent of the population. Neither Garcia nor the two victims had CD transferrin.

Although various bloodstains were found in defendant's car and a few blood drops were discovered outside the apartment, many were of insufficient quantity to perform blood-typing analysis. However, type O blood, with the CD type in the TF system, was discovered on the floormat in defendant's car. Blood on a paper tissue in the trunk of the car was found to be consistent with the blood of either Zavala or Barragan, but not with the blood of defendant or Garcia. Of three spots of blood found outside the brothers' apartment on the pavement leading to Pierce Road, one may have been type A or a mix of type A and type O; the other two were insufficient to produce test results.

Inside Zavala's apartment, there were copious bloodstains on the living room carpet and walls. Blood was found on the front door, the couch, the television, the stereo, a telephone book, a mattress in the bedroom, and on the walls, sink and window in the bathroom. Skinner tested the blood samples and was able to determine that all of the blood surrounding Barragan was consistent with his type. Although Skinner could not say that blood belonging to defendant was found in the apartment, she opined, in response to hypotheticals, that if an attacker had been bleeding from a forearm wound, the attacker's blood might not be found if the length of the attack was a matter of minutes and the wound was enclosed in the long sleeve of a jacket so that the clothing would absorb the blood. She also indicated that because Barragan had bled so profusely, small amounts of an attacker's blood might go undetected.

Skinner also tested the blood on the knife found by the freeway. Skinner testified that the hilt of the knife had human blood on it, but that a lot of the blood on the blade, being very dry and crusty, had flaked off by the time she examined it. As for the bloodstains found on the plastic capsule inside the knife handle, Skinner found a strong reaction for type O blood, and a weak reaction for type A blood, suggesting the possible presence of both types.

*1102 2. The Defense Case

Defendant did not take the stand. His defense was that he was not present and had nothing to do with the crime. There was no physical evidence placing defendant at the scene, and the surviving victim could not positively identify him.

Maria Vargas had initially described the first man to come down the stairs on the night of the murder as a "Black" man when speaking to the 911 dispatcher and the police. Vargas failed to identify defendant when shown a photo lineup on May 27, 1987, and identified him for the first time at the preliminary hearing. At that hearing, defendant was wearing an orange jumpsuit and was seated at the defense table behind a nameplate that said "defendant."

Nathan Howard, testifying for the defense, disclosed that he had known Juan Garcia since 1967, and in the past had even identified himself as Garcia's "partner." Although he had met defendant a couple of times, he was unaware of any friendship between defendant and Garcia, and had never seen them socialize together. Howard also testified that he knew defendant's brother, Raymond, and that he had run into Raymond at Highland Hospital one morning in May 1987. Raymond told Howard that a transmission had fallen on defendant's arm.

Defendant's sister, Norma, testified that when defendant arrived at her home at 4:10 a.m. on or about May 5, 1987, he was covered with dirt and grime, and had car grease on his face and hands. Although defendant asked for a bandage and wanted to be taken to Raymond's house, Norma did not notice that he was injured, or that he needed to go to the hospital. Defendant said he had been working on his car. He was bald at the time, and looked normal but dirty.

B. PENALTY PHASE EVIDENCE

1. The Prosecution Case

a. Nishimoto Incident (May 1987)

On or about May 25, 1987, Hayward Police Officer Darrin Nishimoto saw a Lincoln Continental run a stop sign at 45 to 50 miles per hour. He pursued the car, which went over 70 miles per hour through 2 red lights before finally pulling over. Defendant, who was drunk, immediately got out of the car and started walking away. When Nishimoto ordered defendant back in *1103 the car, defendant responded "Fuck you. What are you going to do?" As Nishimoto placed his hand on defendant's jacket collar, defendant turned and started swinging at him. Officer Robert Palermini, responding to Nishimoto's call for backup, saw defendant and Nishimoto wrestle to the ground. As Palermini attempted to assist in handcuffing defendant, defendant grabbed Palermini's baton, which had fallen to the ground. Nishimoto shot defendant with his stun gun. A third officer eventually arrived and defendant was finally subdued and handcuffed. Nishimoto suffered a broken hand in the struggle.

b. Nieves Incident (May 1987)

Gladys Nieves had lived with defendant off and on for about four years. On May 19, 1987, shortly after they had separated, defendant came to Nieves's apartment to talk about getting back together. When Nieves said she did not want to get back together, defendant became angry, and they began arguing. During the course of the argument, defendant struck Nieves in the face, arm and ribs, and called her a bitch. Nieves managed to push defendant away and call the police. Defendant, who appeared intoxicated, was arrested when the police arrived. Nieves's face was swollen and she was red around her eye.

c. Gallia Incident (April 1987)

On April 2, 1987, Hayward Police Officer Richard Gallia of the canine unit and Officer Brent Morris stopped a car for a stop sign violation. Defendant, the front seat passenger, was staring out the window and swearing in a slurred manner. When asked to step from the car, defendant emerged fighting and swinging at Gallia. As Gallia struggled with defendant, defendant broke out of a carotid restraint and hit Gallia in the chest, denting the steel chest plate of his bulletproof vest. Morris attempted to assist Gallia in handcuffing defendant, but the two officers were unable to restrain him. Defendant was ultimately subdued with the aid of the canine unit's dog and a third police officer. At one point during the struggle, the dog bit defendant in the chest but defendant managed to pry the dog's mouth open to release its bite hold. Gallia had never previously seen anyone able to do this. Defendant's behavior was consistent with phencyclidine (PCP) intoxication.

d. Rodriguez Incident (November 1984)

On November 2, 1984, Correctional Officer Leo Rodriguez was supervising the serving of breakfast at Deuel Vocational Institute in Susanville when he observed that defendant and two other Hispanic inmates were serving *1104 double portions of breakfast to all Hispanic inmates. Rodriguez advised the three inmates to give equal portions to all inmates, but they ignored his directive. After Rodriguez advised them a second time and again was ignored, he had the inmates removed from the serving assignment. At that point, defendant became hostile and verbally abusive toward Rodriguez, cursing and threatening to "kick [his] ass." According to Rodriguez, defendant was laughing and appeared to be under the influence of alcohol or some other substance.

e. Johnson Incident (June 1984)

On June 3, 1984, Lamont Johnson and his brother, Paul Tadlock, went to a 7-Eleven store in Union City to buy some beer. Johnson did not have his identification with him, so he asked defendant, who happened to be in the store, to buy some beer for him. Defendant refused, and Johnson returned to his car. Defendant came up to Johnson's car and started saying or yelling something, which Johnson could not hear because the window was rolled up. When Johnson started to get out of the car, defendant struck him in the head and knocked him unconscious. Tadlock got out of the car and started wrestling with defendant until Steve May, a store security guard, drew his baton and told them to break it up. Defendant got a four-arm lug wrench from his car and swung at May with great force. Defendant then gave the wrench to a female companion, who also swung at May. Defendant retrieved a long steel bar from his car, which he also began swinging at May. Eventually, defendant and his female companion got back in the car and drove away.

Johnson was taken to a hospital by ambulance and received stitches to his lip. Tadlock suffered a bloody nose. Although Tadlock and May identified defendant for police shortly after the incident, only Tadlock made an identification at trial. Johnson, Tadlock and May all testified they had done nothing to provoke defendant's attack.

f. Calles Incident (January 1981)

On January 21, 1981, defendant approached fellow inmate Rick Calles in the yard at the medium security prison in Susanville. Defendant asked Calles why he had missed a meeting of Mexican/Puerto Rican inmates earlier that day. [12] They went into a dorm, and defendant sat on a bed facing Calles, while another inmate sat on the same bed as Calles to his right. Defendant, who was wearing weightlifting gloves, got up and moved behind Calles on his right side. About 10 seconds later, Calles saw a gloved hand come *1105 toward him. He felt a blow on the side of his face, and was knocked unconscious. Calles suffered a broken nose and a cracked rib, and was hospitalized for seven days.

g. Correctional Facility Fire (January 1981)

At approximately 1 a.m. on January 1, 1981, prisoners on three tiers at the correctional facility in Susanville started setting fires, breaking windows and throwing jars of water at the guards. Correctional Officer Frank Shipman was standing by a wall when he saw someone throw burning material through a broken window onto a fire just outside the dormitory where the inmates were housed. Shipman, who was 18 to 20 inches away, shined his flashlight through the window and saw defendant moving away from the window. Defendant was the only inmate in the area of the window at the time. Other inmates were standing about 18 to 24 inches beyond defendant when Shipman first saw him.

h. Espinoza Homicide (June 1980)

In the afternoon and early evening of June 6, 1980, Ernest Espinoza and Eric Mitchell were sitting on Mitchell's porch, when a car with about seven passengers drove repeatedly by. When the passengers yelled angrily in Spanish, Espinoza gave them "the finger." Later that evening, Espinoza left the Mitchell house just before 9 p.m. to call his girlfriend from a pay phone at a gas station across the street. While Espinoza was at the pay phone, a group of approximately 10 men approached him. Espinoza was shot a number of times and stabbed. He died from his wounds.

Six men, including defendant and his brother Raymond, were charged with the murder of Ernest Espinoza. Only Raymond was alleged to have personally used a firearm, and only defendant Toby Jaramillo was alleged to have personally used a deadly weapon. Raymond and Jaramillo were also the only ones alleged to have personally inflicted great bodily harm. Defendant was alleged to have been armed with a firearm, and to have suffered a previous conviction. On August 29, 1980, pursuant to a plea bargain, Raymond pleaded guilty to manslaughter with personal use of a firearm, and Jaramillo pleaded guilty to manslaughter with personal use of a knife. Defendant pleaded guilty to violation of section 32 (accessory). The murder charges against all charged defendants were dismissed.

At the penalty phase, Rejon Mitchell, who was Eric Mitchell's brother, came forward and testified that he saw defendant shoot Espinoza.

*1106 i. Roach Shooting (April 1977)

On the night of April 1, 1977, Frank Roach drove with two friends in his pickup truck to a park in Hayward for the purpose of fighting with another group of people. As Roach and his friends waited for the other group to arrive, a car carrying three or four people pulled up. Someone rolled down the rear window of the car and pointed a pump-action, sawed-off shotgun at them. Roach and his friends scrambled out of the truck and tried to run away as a first shot was fired. When Roach was 10 to 15 feet from the truck, a second shot was fired. Roach was hit from head to toe in the back with shotgun pellets. His friend, Chris Garner, was shot in the arm or shoulder.

Roach identified defendant as the shooter from a photo shown to him four or five days after the incident. He also identified defendant at the preliminary hearing. Defendant ultimately pleaded guilty to assault with a deadly weapon.

j. Jill M. Incident (October 1976)

At approximately midnight on October 16, 1976, Jill M. was standing with her girlfriend Laurie at a bus stop in Hayward when five men in a car pulled up. The two women accepted their offer of a ride, but instead of taking them home, the men drove to a house in San Leandro. While the men dragged Jill screaming into the house, Laurie was able to walk away. Inside the house, Jill was subjected to a series of sexual assaults by at least three men, including defendant. Defendant, acting alone, committed forcible rape, sodomy and oral copulation on Jill, and, acting in concert with another man, committed forcible oral copulation and sodomy on her.

Although sexual assault charges were filed against defendant, the charges were subsequently dismissed. Jill testified that after the preliminary hearing she had asked the prosecution not to require her to participate in the case any further because she was pregnant and feared for her life. She admitted, however, that defendant had never threatened her.

k. Prior Felony Convictions

In addition to presenting documentation of defendant's felony accessory conviction in the Espinoza matter, the prosecutor offered evidence showing that defendant had been convicted for auto theft in Solano County and burglary in Alameda County.

2. The Defense Case

The defense attempted, in cross-examining the prosecutor's witnesses and in calling its own witnesses, to cast doubt on the prosecutor's theories of the *1107 above events. In particular, the defense attempted to show: (1) that defendant's brother Raymond was the only person to shoot Ernest Espinoza, and that Rejon Mitchell's testimony and identification of defendant at trial contradicted statements he had made shortly after the incident; (2) that Oscar Payne and Billy Grejeda, not defendant, had shot at Frank Roach during the confrontation at the park; and (3) that Jill M. consented to have sex with multiple partners at defendant's house on the night in question.

II. DISCUSSION

A. Failure to Hold Competency Hearing

(1a) Defendant contends that the lower courts erred by not ordering, sua sponte, a hearing on his competence to stand trial. (See Pate v. Robinson (1966) 383 U.S. 375, 385 [ 15 L.Ed.2d 815, 822 , 86 S.Ct. 836 ]; People v. Howard (1992) 1 Cal.4th 1132, 1162 [ 5 Cal. Rptr.2d 268 , 824 P.2d 1315 ]; People v. Pennington (1967) 66 Cal.2d 508, 518 [ 58 Cal. Rptr. 374 , 426 P.2d 942 ].) (2a) Defendant also contends that his counsel was ineffective in failing to request a competency hearing at any stage of the proceedings in question, and in failing to move to set aside the information based upon defendant's asserted incompetence at the preliminary hearing. [13] (1b), (2b) He asserts that his conviction must be reversed because these omissions denied him statutory and constitutional protections, including his rights to due process and effective assistance of counsel under the state and federal Constitutions.

Defendant's claims arise out of events that transpired at three court hearings held on June 22, 1987, September 11, 1987, and September 15, 1987. [14] On June 22, 1987, defendant appeared in municipal court for his preliminary hearing. At defense counsel's request, the court held an in camera hearing during which counsel informed the court of a "fundamental dispute" between counsel and defendant. According to counsel, defendant refused to agree to a time waiver for the preliminary hearing even though counsel had repeatedly explained to him that a waiver was essential in order to adequately prepare for the hearing. Counsel asserted that defendant's decision was not rational, that defendant refused to communicate with counsel intelligently, and that defendant did not give an articulate reason for not waiving time. Although counsel had not had an opportunity to obtain a psychiatric evaluation, counsel expressed the opinion that defendant was "not competent to proceed to preliminary hearing today because he has been *1108 unable to assist me in making a decision as to whether to waive time and prepare for the preliminary hearing." Counsel clarified, however, that apart from defendant's refusal to waive time, defendant had not talked in an irrational manner, and counsel had "not seen any evidence of mental defect."

The court then questioned defendant regarding his understanding of the situation and explained to him what a time waiver would and would not entail. During the discussions, defendant stated that he did not want to waive time because he had been "sitting in here too long," even though he apparently knew he had a parole hold in any event, and that he just wanted "to get this over with." Defendant also complained that counsel was not telling him anything, and that counsel kept challenging him and treating him like a child. At one point, the court stated its belief that "what [defendant] values is a little more TLC." During the hearing, defendant had several changes of mind about waiving time. Ultimately, however, he agreed in open court to waive time until July 20, 1987.

On September 11, 1987, the superior court held an in camera hearing during which defense counsel addressed issues regarding defendant's competency to proceed to trial on September 21, 1987, and counsel's desire to waive defendant's right to be tried within 60 days of the filing of the information. After explaining to the court that more time was needed to prepare for trial, counsel summarized the events occurring at the hearing on June 22. Counsel then reported that defendant refused to waive time for trial, that he refused to sign release forms for police reports, medical information and other documents despite counsel's detailed explanations for their need, and that he was being uncooperative and unreasonable.

A defense investigator then told the court that he had obtained information from defendant's mother that when defendant was two or three years old he had "some sort of seizure, she believes epileptic type seizure where he actually turned blue and was taken to Children's Hospital in Oakland." The investigator also said family members stated that defendant had suffered from migraine headaches throughout his life.

Additionally, counsel informed the court that he had spoken with Dr. Missett and Dr. McKinsey, two defense psychiatrists, and that both believed the records concerning defendant's seizure were "crucial to a psychiatric defense." Although Dr. Missett was not present at the hearing, counsel related that Dr. Missett had met with defendant for one to two hours, and that Dr. Missett felt that defendant had brain damage due to the "two major *1109 seizures" he had heard about. [15] According to counsel, however, Dr. Missett had "not done a competency evaluation and wanted to get a psychological evaluation on competence before he arrived at an opinion."

Dr. McKinsey was present at the hearing. Although defendant had refused to meet with him, Dr. McKinsey offered the following opinion based on reports given to him and discussions with Dr. Missett. "I suspect that there is a drug dementia; that Mr. Rodrigues has difficulties that have been outlined earlier which are secondary to that drug dementia. That one of the reasons he wouldn't sign anything, as he just said, was he doesn't understand. It is going to be difficult for him to understand anything if his brain isn't working well. [¶] I have etiological events in the record, which is to say a considerable amount of poly substance abuse dating way back, dating as far back as 4/2/87 for example, and as late as May 25th, '87. [¶] It seems to me that a person of this level of drug use is at very high risk for a neurological impairment that would make it very difficult for him to cooperate with his defense."

During discussions on the matter, defense counsel expressed the opinion that it was in defendant's best interest to waive his right to trial within 60 days so that counsel could investigate his competence to proceed to trial. The court then explained to defendant that his attorneys thought it was in his best interest to waive time and to let the doctors talk to him so that a decision could be made how best to defend him. Although defendant stated he did not wish to waive time, he did agree, in response to the court's inquiry, that he would speak to the defense doctors. He also indicated that he would decide, after meeting with the doctors, whether to agree to a time waiver and to a release of medical records. Since defendant was unwilling to waive time but was agreeable to reconsidering the matter after a meeting with defense psychiatrists, the court declined to give counsel time over defendant's objection. The court continued the hearing to September 15, 1987, and suggested that at that time they could ascertain whether Dr. Missett would be prepared to testify as to incompetence.

At the continued in camera hearing on September 15, 1987, defense counsel reported that defendant had given written releases of information for parole records, probation records, police reports and school records. Although defendant had not consented to releases for medical records, he nonetheless was willing to waive his right to be tried within 60 days. In response to court questioning, counsel agreed that the request for a trial continuance over defendant's objection was no longer an issue but indicated *1110 that the defense had not completed its competency investigation. Counsel then reported that defendant had met with the defense psychiatrist as previously agreed, and that there was some rapport between defendant and the psychiatrist. Counsel added that defendant's rapport with counsel had increased in the past three days. Defendant agreed that he and counsel were getting along better. Subsequently, in open court, a continuance on the trial date was ordered. Thereafter the competency issue was never raised again.

The relevant principles may be summarized as follows. (3a) "A trial court is required to conduct a competence hearing, sua sponte if necessary, whenever there is substantial evidence of mental incompetence. [Citations.] Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue. [Citation.]" ( People v. Howard, supra, 1 Cal.4th at p. 1163 .) "`The court's duty to conduct a competency hearing arises when such evidence is presented at any time "prior to judgment." [Citations.]'" ( People v. Danielson (1992) 3 Cal.4th 691, 726 [ 13 Cal. Rptr.2d 1 , 838 P.2d 729 ].)

(1c), (2c) Defendant contends that substantial evidence of incompetence appears in the record, citing to the evidence of his childhood seizure and lifelong episodes of migraine headaches, as well as to the statements of the two defense psychiatrists. Defendant also emphasizes the point that his counsel repeatedly expressed concerns regarding his competence to understand and assist in his defense, and counsel's conclusion that his refusal or reluctance to cooperate appeared connected to a physical-mental condition, rather than merely to obduracy. We are not convinced.

A defendant is mentally incompetent "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a), italics added.) Here, the statements provided by defendant's family that defendant suffered from migraine headaches and that he had a possible epileptic seizure when he was two or three years old did not, standing alone, suggest a mental disorder or developmental disability. Although the court was informed by the defense at the September 11 hearing that it was in the process of obtaining defendant's medical records by subpoena, nothing in the record after that time indicated that any medical records ever obtained substantiated the claim of such a disorder or disability.

Moreover, the statements of the two defense doctors did not furnish substantial evidence of mental incompetence. (3b) We have held that the standard for determining when a psychiatrist's opinion will constitute substantial evidence of incompetence to stand trial is as follows: "`If a psychiatrist ... who has had sufficient opportunity to examine the accused, states *1111 under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied.'" ( People v. Stankewitz (1982) 32 Cal.3d 80, 92 [ 184 Cal. Rptr. 611 , 648 P.2d 578 , 23 A.L.R.4th 476 ], citing People v. Pennington, supra, 66 Cal.2d at p. 519 .) (1d), (2d) For the reasons below we find that the conclusions of Dr. McKinsey and Dr. Missett did not meet this test.

First, although Dr. McKinsey attended the court hearing and offered his opinion, he had not had any opportunity to examine defendant. Moreover, the basis for his opinion was rather brief (13 lines of transcript) and virtually devoid of particulars. Dr. McKinsey merely told the court that, based on reports he had read, he suspected that defendant suffered from "drug dementia" and that defendant's record of "a considerable amount of poly substance abuse" suggested a very high risk of neurological impairment that would make it very difficult for him to cooperate with his defense. But no elaboration or details were provided regarding the type or quantity of drugs involved, the frequency of the claimed abuse, or the extent of impairment threatened. This falls far short of the showing made in People v. Stankewitz, supra, 32 Cal.3d at page 92 , and in People v. Pennington, supra, 66 Cal.2d at page 519 .

Second, the purported opinion of Dr. Missett, who had actually met with defendant but was not present at the hearing, was simply inconclusive. Although defense counsel claimed that Dr. Missett "feels that the defendant has brain damage because of the two major seizures he has heard about through [the defense investigator]," counsel also stated that Dr. Missett was "not sure about his opinion since he's not done a competency evaluation and wanted to get a psychological evaluation on competence before he arrived at an opinion." Thus, even if we assume that Dr. Missett had offered his tentative opinion directly and under oath, it did not furnish substantial evidence of defendant's incompetence. Moreover, it is significant to note that after Dr. Missett apparently met with defendant a second time after the second hearing for two or three hours, defense counsel offered no further opinion from the doctor that defendant was incompetent.

(1e) Finally, the lower court judges were not compelled to order a competency hearing based on defense counsel's opinion that defendant might be incompetent. We rejected a similar argument in People v. Howard, supra, 1 Cal.4th at pages 1163-1164: "Under section 1368, if a `doubt arises in the mind of the judge' as to the defendant's mental competence, the judge must `state that doubt in the record' and solicit defense counsel's opinion on *1112 the matter. (§ 1368, subd. (a).) In such a case, `[i]f counsel informs the court that he believes the defendant is or may be mentally incompetent,' the court must order a hearing. (§ 1368, subd. (b).) Because the court in this case did not declare a doubt, section 1368 did not require the court to conduct a hearing based solely on counsel's opinion." Here, as in People v. Howard , the lower court judges expressed no doubt as to defendant's competence. Accordingly, they were under no duty to hold a competency hearing based solely on counsel's opinion that defendant might be incompetent.

It must also be remembered that counsel's concerns regarding defendant's competency were based primarily on defendant's refusal to assist counsel in his defense. The record establishes, however, that even though there was a definite lack of rapport and cooperation between counsel and defendant initially, the situation improved markedly by the third hearing. Not only did defendant agree to a one-month continuance of the preliminary hearing and a sixty-day continuance of the trial, but he eventually provided the requested releases for parole and probation records, police reports and school records. Defendant also met with the defense psychiatrist as agreed at the second hearing, with no apparent resistance or problems. Significantly, defense counsel did not further pursue the competency issue once defendant became cooperative.

On this record, we cannot say as a matter of law that the evidence raised a substantial doubt as to defendant's mental competence. Accordingly, the lower courts were under no duty to order a competency hearing. [16]

(2e) Because the record does not demonstrate a substantial doubt as to defendant's competency, we reject defendant's related claims that his counsel was ineffective in failing to request a competency hearing at any stage of the proceedings or in failing to move to set aside the information based upon defendant's asserted incompetence at the preliminary hearing.

B. Guilt Phase Issues

1. Videotape Evidence

The day after the murder, the police made a videotape with the help of Maria Vargas, the victims' downstairs neighbor. The videotape showed the *1113 outside of Vargas's apartment, the stairway that was located by her bedroom window, and a view from her bedroom toward the stairway landing and out toward the street. It also contained scenes in which a White man in a white shirt came down the stairs in broad daylight, stopped and turned to look directly toward Vargas's apartment, and then ran off in the direction the assailants had run. At trial, the court admitted the videotape without its soundtrack. Defendant contends the court erred in admitting the videotape as a reenactment, and in admitting it to refresh Vargas's recollection.

(4) Preliminarily, we address the Attorney General's argument that these claims have been waived. The record demonstrates that defense counsel had initially moved in limine to exclude the videotape on the grounds now asserted on appeal, but was unsuccessful. [17] When the prosecutor requested to have the videotape admitted into evidence during Vargas's examination, the trial court asked defense counsel, "Your objection to it being admitted?" Defense counsel responded: "I believe it's the one that we've been over before. No objection." Although the Attorney General is correct that counsel's remarks may be construed as indicating an abandonment of the earlier objections, we conclude that they are more properly understood as indicating counsel's intent to preserve such objections but to raise no additional ones. Nonetheless, for the reasons below we find defendant's claims to be without merit.

a. Admissibility

(5a) Defendant contends that the videotape should have been excluded because the prosecution failed to lay a foundation showing the accuracy of certain scenes in the tape as reenactments of what Vargas witnessed the night of the murder. ( People v. Boyd (1990) 222 Cal. App.3d 541, 565-566 [ 271 Cal. Rptr. 738 ]; People v. Vaiza (1966) 244 Cal. App.2d 121, 127 [ 52 Cal. Rptr. 733 ].) Specifically, defendant claims that three scenes featured in the videotape were inaccurate in the following particulars. First, the scenes were each shot in broad daylight, whereas the actual events occurred in the middle of the night and were illuminated only by an artificial light located *1114 above the stairs. Second, the three scenes each depicted one White male wearing a white shirt coming down the stairs and running off, whereas Vargas testified she saw two males, one Hispanic and one "Black" or "dark," wearing dark clothing on the night of the murder. Third, while one scene correctly showed Vargas's vantage point from inside her apartment looking out the bedroom window, another scene which featured a woman and child standing outside the apartment was inaccurate in this regard. [18] Defendant asserts that these inaccuracies were prejudicial in that they created a misleading impression of what Vargas witnessed and transformed her "shaky" identification of him into a memorable and persuasive image.

(6) In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them. ( DiRosario v. Havens (1987) 196 Cal. App.3d 1224, 1232 [ 242 Cal. Rptr. 423 ].) Within these limits, "`the physical conditions which existed at the time the event in question occurred need not be duplicated with precision nor is it required that no change has occurred between the happening of the event and the time the [videotape] is taken. [Citation.]'" ( Id., at pp. 1232-1233.)

(5b) In this case, the trial court properly found the videotape admissible. The videotape had been offered as demonstrative evidence to show the jurors the relative locations of the victims' apartment, Vargas's apartment, the rear stairway and the driveway of the apartment building. In particular, the videotape had been intended in part to show Vargas's vantage point as she witnessed the assailants flee the scene. Therefore, once Vargas confirmed in her testimony that the videotape accurately showed the area where she was and where she saw the assailants, the trial court could correctly conclude that the videotape was a reasonable representation of the physical layout of the apartment building and Vargas's vantage point. Moreover, the court could properly find that a viewing of the videotape would aid the jurors in their *1115 determination of the facts of the case notwithstanding the claimed inaccuracies. [19] ( DiRosario v. Havens, supra, 196 Cal. App.3d at pp. 1232-1233.)

Relying on People v. Boyd, supra, 222 Cal. App.3d 541 , and People v. Vaiza, supra, 244 Cal. App.2d 121 , defendant contends that the difference in lighting conditions precluded admission of the videotape. Unlike the instant situation, however, those cases involved photographs or films that purported to show lighting conditions at the time of the incidents in question. Because the purpose of the evidence in those cases was to demonstrate to the jury the lighting conditions under which witnesses were able to view the events of the crime, those conditions assumed great significance in assessing the admissibility of the evidence. (See People v. Boyd, supra, 222 Cal. App.3d at p. 566 ; People v. Vaiza, supra, 244 Cal. App.2d at p. 127 .) But here the videotape was not offered for the purpose of showing lighting conditions on the night in question. Therefore, defendant's reliance on the above cases is misplaced.

Furthermore, we reject defendant's claim that the videotape's inaccuracies created a misleading impression of the events witnessed by Vargas, as well as his further claim that the tape should have been excluded as being more prejudicial than probative. First, defendant fails to demonstrate how the various inaccuracies could have made the videotape misleading as to the purposes for which it was offered. Second, the inaccuracies either were obvious to the jurors (such as the fact that Vargas had not testified to seeing one White male in a white shirt flee the scene), or, if not so, were specifically brought to their attention. For example, the prosecutor elicited testimony from Vargas that the videotape was filmed during the day, while the events she witnessed occurred at night. He also had Vargas clarify that, consistent with one of the videotaped scenes, her vantage point was from the inside of her apartment looking out through her bedroom window. Moreover, the prosecutor made no attempt to pass the videotape off as depicting exactly what Vargas saw the night of the murder. He also never assumed or suggested through his questioning of Vargas that she was outside of her apartment, or that she was looking through an open bedroom door when she saw the assailants. Hence, any potentially prejudicial effects of the inaccuracies were minimized, if not virtually eliminated. No abuse of discretion appears.

Under circumstances such as these, we must assume that the jurors were intelligent people and that they understood and took into account the differences identified by defendant on appeal. (See Greeneich v. Southern Pacific *1116 Co. (1961) 189 Cal. App.2d 100, 108 [ 11 Cal. Rptr. 235 ] [court properly admitted motion picture with sound of train purporting to run over crossing section in question, even though lighting and other conditions in motion picture were dissimilar to those surrounding accident].) Admission of the videotape did not constitute error, prejudicial or otherwise.

b. Refreshing Vargas's Recollection

(7) Defendant also contends it was erroneous for the court to admit the videotape at trial to refresh Vargas's recollection, and to allow the prosecutor to play and refer to the videotape, since Vargas had not stated that she could not remember any of the facts which the prosecutor sought to elicit. (See People v. Lee (1990) 219 Cal. App.3d 829, 840 [ 268 Cal. Rptr. 595 ] ["A witness may refer to hearsay to refresh his recollection; however, before doing so the witness must testify he cannot remember the fact sought to be elicited."].)

This claim is devoid of merit. Contrary to defendant's assertion, the prosecutor offered the videotape to demonstrate the physical layout of the apartment building, and to show Vargas's vantage point as she viewed the assailants fleeing the scene of the crime. Since the videotape was neither offered nor admitted at trial for the purpose of refreshing Vargas's recollection, People v. Lee, supra, 219 Cal. App.3d at page 840 , is inapposite.

Additionally, the court committed no error in allowing Vargas to view the videotape to refresh her recollection before taking the stand. Even if Vargas could remember the events independently without the videotape, defendant has cited no authority under which Vargas could have been prevented from watching it before trial. [20]

2. Hearsay Evidence Regarding Identifications

Menlo Park Police Detective Ronald Williams testified at trial that: (a) Vargas identified Juan Garcia at his preliminary hearing; (b) Vargas told the *1117 detective at Garcia's preliminary hearing that she had previously recognized Garcia in a live lineup; and (c) neither Vargas, Zavala nor any other person had chosen Richard Lopez or Nathan Howard from a photographic lineup. Defendant contends the admission of these hearsay statements constituted prejudicial error and denied him the benefit of various constitutional protections.

a. Identification of Garcia at Preliminary Hearing

The prosecutor asked Detective Williams on direct examination whether Vargas had positively identified Garcia at a preliminary hearing. Defense counsel objected on hearsay grounds. After the prosecutor asserted it was "a prior identification," the trial court overruled the objection. The detective then testified that Vargas did identify Garcia in court.

Under Evidence Code section 1238, evidence of a statement of identification is not made inadmissible by the hearsay rule when the statement would have been admissible if made by the witness while testifying and the following additional foundational requirements are met: "[¶] (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; [¶] (b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and [¶] (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time."

(8a) Defendant contends there had been no evidence, from Vargas or any other witness, that the occurrence was fresh in her mind at the time of her statement. (Evid. Code, § 1238, subd. (b).) He also asserts that Vargas had not previously testified that she made an identification of Garcia at the preliminary hearing. ( Id., § 1238, subd. (c).) Defendant argues that these foundational deficiencies severely undermined any asserted reliability of the purported identification. Once admitted, he contends, Vargas's prior identification of Garcia served to show that she had consistently identified Garcia, thereby lending significantly more credibility to her allegedly less certain identification of defendant.

Even if the foundational requirements for a prior identification were not all satisfied, the admission of the challenged evidence could not possibly have prejudiced defendant. First of all, the evidence was essentially cumulative of other evidence in the record demonstrating Vargas's recognition of Garcia. Vargas testified both on direct and redirect examination that, although she did not initially identify Garcia at his live lineup because she was *1118 afraid for herself and her child, she nonetheless recognized Garcia as one of the men she saw. Vargas was also able to recognize and identify Garcia from a photograph at the time of trial.

More significantly, Vargas's recognition and identifications of defendant were not, as defendant suggests, uncertain. At trial, Vargas explained that although she recognized defendant as one of the fleeing men when initially shown his photo in 1987, she chose not to identify him at that time because she was afraid. However, Vargas overcame her fear and stepped forward to identify defendant both at his preliminary hearing and at a subsequent photographic lineup. She also identified him at trial. Since Vargas's testimony was both consistent and unwavering in this regard, it is not reasonably probable that the admission of Vargas's identification of Garcia at his preliminary hearing affected the verdict. [21] ( People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].)

Finally, defendant argues that his constitutional right of confrontation was abridged because he was unable to cross-examine Vargas at Garcia's preliminary hearing and because Vargas was excused as a witness before Detective Williams took the stand. Not only was this claim waived by the failure to assert it below (Evid. Code, § 353), it is without merit. (9) Where the witness is available at trial for cross-examination, the principal danger of admitting hearsay evidence is not present (see People v. Gould (1960) 54 Cal.2d 621 , 626-627 [ 7 Cal. Rptr. 273 , 354 P.2d 865 ]), and neither the federal nor the state constitutional right of confrontation is violated ( California v. Green (1970) 399 U.S. 149, 153-164 [ 26 L.Ed.2d 489, 494-501 , 90 S.Ct. 1930 ]; People v. Chavez (1980) 26 Cal.3d 334 , 349-361 *1119 [ 161 Cal. Rptr. 762 , 605 P.2d 401 ]; see also People v. Johnson (1992) 3 Cal.4th 1183, 1220 [ 14 Cal. Rptr.2d 702 , 842 P.2d 1 ]). (8b) Here the record shows that Vargas had not been excused, but had testified on rebuttal in response to other new evidence elicited by the defense during its cross-examination of Detective Williams. Because Vargas apparently was available for recall and cross-examination on this matter had defense counsel so requested, defendant's right of confrontation was not abridged. [22]

b. Vargas's Recognition of Garcia at Prior Lineup

Immediately after Detective Williams testified that Vargas identified Garcia at his preliminary hearing, the prosecutor asked him: "The date of the preliminary hearing where you had the discussion with Mrs. Vargas, did she indicate to you that she had in fact recognized Mr. Garcia on the stage?" When defense counsel objected to the question as "leading and hearsay," the prosecutor responded: "It's a prior inconsistent statement." After the trial court overruled the objection, Williams answered: "Yes. She stated that she had identified him on each of the occasions; however, she was in fear of safety for herself and for her family and that's why she failed to specifically point him out in those situations."

(10) Defendant contends that the trial court erred in overruling his objection because Vargas's purported statement to the detective was consistent, not inconsistent, with her testimony. Defendant claims that the erroneous admission of the statement prejudiced him by making Vargas's testimony appear more credible and persuasive than it actually was.

This claim is unavailing. Even if the challenged evidence was not admissible as a prior inconsistent statement, any error in its admission was clearly harmless. First, the statement was merely cumulative of Vargas's trial testimony. Second, as discussed previously, Vargas was consistent and unequivocal in her recognition of defendant. Given the record, it is not reasonably probable that admission of the statement affected the verdict. ( People v. Watson, supra, 46 Cal.2d at p. 836 .)

Defendant next claims for the first time on appeal that the erroneous admission of Vargas's extrajudicial statement abridged his right of confrontation. The record, however, discloses that defendant's counsel did, in fact, *1120 cross-examine Vargas earlier about Garcia's live lineup, although he did not dwell on the matter. Moreover, as noted previously, Vargas was apparently available for additional cross-examination had defense counsel so requested. Under these circumstances, defendant's right of confrontation was not abridged. ( California v. Green, supra, 399 U.S. at pp. 153-164 [26 L.Ed.2d at pp. 494-495]; People v. Johnson, supra, 3 Cal.4th at p. 1220; People v. Chavez, supra, 26 Cal.3d at pp. 349-361.) [23]

c. "Nonidentification" of Richard Lopez and Nathan Howard

Detective Williams testified without objection that Vargas and Zavala viewed photographic lineups containing the photographs of Richard Lopez (Ontiveros's boyfriend) and Nathan Howard (a friend of Garcia's who appears to have been of African-American ethnicity). He further testified without objection that neither Vargas nor Zavala identified these two men as suspects in the case, and that Zavala specifically stated that Lopez was not involved in the crimes. Subsequently, the prosecutor asked: "With respect to the photographic line-ups of Richard Lopez and Nathan Howard, in the entirety of the investigation in this case[,] has anyone identified a photograph of Richard Lopez as a participant in this crime?" Defense counsel objected on the grounds that the question was argumentative and called for opinion, hearsay and speculation. After the prosecutor responded that the question called for acts occurring in the witness's presence and that the absence of an identification was not hearsay, the objection was overruled. The detective responded: "No one ever identified Richard Lopez or Nathan Howard as being participants in this crime."

(11a) Defendant contends the court erred in admitting Detective Williams's testimony that no one, including Vargas and Zavala, identified Lopez or Howard during the course of the investigation. He claims that such "nonidentification" evidence constituted inadmissible hearsay, and that its admission abridged his constitutional right of confrontation and prejudiced his attempt to inject reasonable doubt into the jurors' minds that a third party (i.e., Howard) committed the crimes.

We see no basis for reversal. In the first place, defense counsel failed to object to the questions and responses pertaining to Vargas and Zavala. Although counsel subsequently objected to the more generalized question asking if anybody had ever identified Lopez as a participant, this was *1121 insufficient to preserve for review the issues concerning Vargas's and Zavala's responses. (Evid. Code, § 353; People v. Zapien (1993) 4 Cal.4th 929, 979-980 [ 17 Cal. Rptr.2d 122 , 846 P.2d 704 ].)

(12) Defendant asserts that if this issue is deemed waived, counsel was necessarily incompetent because there was no legitimate tactical reason for not objecting to the questions pertaining to Vargas and Zavala. We disagree. "Whether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence. [Citations.] To establish ineffective assistance, a defendant must show that counsel's actions `fell below an objective standard of reasonableness under prevailing professional norms.' [Citation.]" ( People v. Hayes (1990) 52 Cal.3d 577, 621-622 [ 276 Cal. Rptr. 874 , 802 P.2d 376 ]; see People v. Zapien, supra, 4 Cal.4th at p. 980 [convictions will be reversed only if the record on appeal affirmatively discloses that counsel had "no rational purpose" for the act or omission].) In this case, defense counsel reasonably might have chosen for tactical reasons not to object because Vargas and Zavala were available for recall and cross-examination, and thus could have testified directly about these matters. (See People v. Ratliff (1986) 41 Cal.3d 675, 692 [ 224 Cal. Rptr. 705 , 715 P.2d 665 ].)

(11b) In any event, even assuming that the issue had been preserved for review and that some or all of the evidence constituted inadmissible hearsay, [24] we are satisfied that the admission of the testimony was not prejudicial. Inasmuch as there had been no evidence that anyone had ever identified Howard or Lopez as a participant in the crimes, Williams's testimony merely reflected the state of the record. Moreover, defense counsel only briefly raised the issue of Howard's or Lopez's possible involvement during his closing argument, presumably because the evidence supporting this theory *1122 was marginal at best. [25] In contrast, the evidence pointing to defendant's involvement was strong, consisting of, inter alia: (1) positive identifications by both Vargas and accomplice Ontiveros; (2) evidence that on the morning after the crimes, defendant sought treatment for an arm injury matching descriptions provided by Vargas, Ontiveros and Zavala; and (3) evidence that on that same morning, defendant requested his brother to lie about his arm injury and to retrieve his car from Ontiveros. Thus, it is not reasonably probable that the perceived error affected the verdict. ( People v. Watson, supra, 46 Cal.2d at p. 836 .) [26]

3. Reading of Vargas's Testimony to Jury

During guilt phase deliberations, the jury requested portions of testimony of Vargas and two other witnesses. With respect to Vargas, the jury requested "[d]irect and/or cross concerning what photo line-ups were shown to her prior to preliminary hearing and what identifications were made." [27] The trial court ordered certain excerpts to be read to the jury, including three portions of Vargas's testimony explaining that she did not identify defendant in the photo lineup predating the preliminary hearing because she was afraid. The court, however, refused defense counsel's request to read portions of her recross-examination testimony that, according to defendant, would have tended to cast a very different light on her alleged "fear" and would have suggested that, had she been truly afraid of defendant, she would not have identified him at his preliminary hearing. [28]

*1123 (13) Defendant contends that the court's refusal to delete Vargas's statements that she was afraid or, in the alternative, to include her other testimony that tended to contradict or explain that remark, was an abuse of discretion that unfairly highlighted testimony unfavorable to defendant and violated his rights to due process, a fair jury trial and a reliable guilt determination. He contends that Vargas's fear testimony should not have been read for the additional reason that it raised the possible, but impermissible, inference that defendant had threatened her.

In response, the Attorney General asserts that defendant waived any objection to some parts of the challenged testimony because it was his counsel who requested that they be read. (Evid. Code, § 353.) Although defendant disputes the waiver contention, he requests that we review the matter in the context of an ineffective assistance claim if a waiver is found.

We find it unnecessary to decide the issues of waiver and ineffective assistance since the underlying claim is so clearly lacking in merit. Vargas's testimony concerning her fear was directly relevant to why she did not identify defendant at the photo lineup. To have omitted this testimony as part of the reading would have grossly distorted the record. No error appears.

The court also did not err in denying defendant's request to read portions of Vargas's recross-examination testimony pertaining to her identification of defendant at his preliminary hearing and to her failure to identify Garcia at his live lineup. Unlike the fear evidence, this other testimony was not responsive to the jury's request for "what photo line-ups were shown to her prior to the preliminary hearing and what identifications were made."

In any event, the court's ruling, even if in error, did not prejudice defendant. The reading of Vargas's testimony was brief, and given in conjunction with testimony by two other witnesses. Additionally, the reading included defense counsel's questioning of Vargas to the effect that if Vargas was actually afraid of defendant, "she could have said what she said at Garcia's live lineup." In substance, this was precisely the point defense counsel had hoped to make with the other excluded portions of Vargas's testimony. (See fn. 28, ante. ) Accordingly, any perceived error was harmless. ( People v. Watson, supra, 46 Cal.2d at p. 836 .)

Finally, defendant argues that Vargas's fear testimony impermissibly suggested that he or someone associated with him had threatened her. (See People v. Mason (1991) 52 Cal.3d 909, 946-947 [ 277 Cal. Rptr. 166 , 802 *1124 P.2d 950]; People v. Weiss (1958) 50 Cal.2d 535, 554 [ 327 P.2d 527 ]; People v. Pitts (1990) 223 Cal. App.3d 606, 778-781 [ 273 Cal. Rptr. 757 ].) We reject this claim at the outset because it was not asserted at trial. (Evid. Code, § 353.) We also find it unpersuasive on the merits. There is no suggestion in the record, either from Vargas's own testimony or from the conduct of trial, including the prosecutor's arguments, that the jury had been told or otherwise left with the impression that Vargas's fear might have been attributable to a threat.

4. Evidence Regarding the Victims' Relationship

a. Exclusion by the Trial Court

On direct examination, the prosecutor asked Zavala if he and his brother were "very close." Zavala replied: "Of course." On cross-examination, Zavala was asked if he had an uncle in Mexico named Castro. After the trial court sustained the prosecutor's relevance objection to this question, defense counsel made an offer of proof, outside the presence of the jury and the witness, that Zavala and Barragan had an uncle named Castro in Mexico who had heard Zavala indicate that he and Barragan for a long time had not been speaking because of Barragan's drug dealing. Defense counsel argued that the evidence would show that the brothers in fact were not close, and that the drug dealing was a source of irritation between them. Defense counsel also referred to a series of police reports indicating that Zavala was initially suspected to be Barragan's murderer.

The court sustained the prosecutor's objection pursuant to Evidence Code section 352, finding that the probative value of the proffered evidence would be outweighed, if not by the time it would take to introduce it, then by the confusion it would cause. The court also denied defendant's motion to strike Zavala's earlier testimony that he and Barragan were close.

(14a) Defendant contends that the trial court prejudicially erred in excluding the above evidence. We disagree.

(15) Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. ( People v. Dyer (1988) 45 Cal.3d 26, 73 [ 246 Cal. Rptr. 209 , 753 P.2d 1 ].) Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. *1125 [Citations.]" ( People v. Jordan (1986) 42 Cal.3d 308, 316 [ 228 Cal. Rptr. 197 , 721 P.2d 79 ].)

(14b) Applying this standard, we find no abuse of discretion. First of all, the relevance of the proffered evidence was not clear since the defense did not establish when the alleged communication between Zavala and his uncle took place, or when the supposed falling out between the brothers occurred. Second, even if a relevant time frame could have been demonstrated, the proffered evidence had little, if any, significance to the vital issues in the case against defendant. [29] Thus, even though defense counsel had represented to the trial court that he did not intend to dwell on the subject, the court cannot be faulted for concluding that the probative value of such evidence was outweighed by concerns that an exploration of the relationship between the two brothers would consume undue time and confuse the issues.

In any event, assuming there was an abuse of discretion, reversal is not warranted. Defendant's involvement in the instant crimes was firmly established through two witnesses other than Zavala: Maria Vargas and defendant's accomplice, Cynthia Ontiveros. Hence, it is not reasonably probable that a more favorable result would have occurred had the evidence been admitted. ( People v. Watson, supra, 46 Cal.2d at p. 836 .)

b. Prosecutorial Misconduct and Ineffective Assistance of Counsel

(16a) Defendant contends that the prosecutor committed misconduct by stating in his guilt phase closing argument that Zavala loved his brother, that he had no motive to lie, and that he had no reason to falsely identify the wrong person as his brother's killer. Defendant claims that the prosecutor, having obtained the favorable ruling excluding defendant's proffered evidence, then used the evidence of Zavala's closeness to Barragan to convince the jury that Zavala's less than certain identification of defendant was in fact accurate. He claims this use of the evidence contradicted an earlier representation made by the prosecutor that the only purpose for establishing the brothers' closeness was to help the jurors appreciate Zavala's state of mind as he was perceiving the attack on Barragan. (Cf. People v. Varona (1983) 143 Cal. App.3d 566, 570 [ 192 Cal. Rptr. 44 ] [finding misconduct where prosecutor argued a falsehood to the jury and also argued the "lack" of evidence even though the defense was ready and willing to produce it].)

We need not address these claims on the merits because defense counsel's failure to object to the prosecutor's remarks waives the issue on appeal. *1126 ( People v. Cummings (1993) 4 Cal.4th 1233, 1334-1335 [ 18 Cal. Rptr.2d 796 , 850 P.2d 1 ].) Nevertheless, we will reach the merits in response to defendant's assertion that the failure to assign misconduct constituted ineffective assistance of counsel.

(17) Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. ( People v. Mayfield (1993) 5 Cal.4th 142, 199 [ 19 Cal. Rptr.2d 836 , 852 P.2d 331 ]; People v. Cox (1991) 53 Cal.3d 618, 656 [ 280 Cal. Rptr. 692 , 809 P.2d 351 ].) If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, "`a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' [Citation.]" ( People v. Cox, supra, 53 Cal.3d at p. 656 .)

(16b) In this case, neither incompetence nor prejudice has been established. First of all, the main thrust of the prosecutor's statements, i.e., that Zavala had no reason to identify anyone but the guilty party as his brother's murderer, was not dependent on the evidence that the brothers were close. Whether or not the brothers shared a close relationship, the record remained devoid of any evidence suggesting a reason or motive for Zavala to wrongly identify defendant. Since the gist of the prosecutor's argument was appropriate, defense counsel's failure to assign misconduct was not unreasonable. In any event, defendant fails to demonstrate prejudice. Overwhelming evidence of defendant's involvement in the instant crimes was presented through Vargas, Ontiveros and others. Thus, even if a competent attorney would have succeeded in persuading the trial court to strike this entire aspect of the prosecutor's argument, it is not reasonably probable that the omission would have resulted in a more favorable result for defendant. ( People v. Mayfield, supra, 5 Cal.4th at p. 199 ; People v. Cox, supra, 53 Cal.3d at p. 656 .) No basis for reversal appears. [30]

*1127 5. Exclusion of Zavala's Opinion Testimony

On cross-examination, defense counsel asked Zavala if he had previously told a defense investigator "that you thought it looked like the attackers had come to the apartment to kill your brother?" The trial court sustained the prosecutor's objection that the question called for speculation as to the intent of the attackers.

(18) Defendant contends the trial court erred because the question called not for speculation, but for the witness's opinion as to what he personally perceived during the attack. Defendant claims the error was prejudicial because the evidence would have created a reasonable doubt on the special circumstance allegations and the underlying charges of attempted robbery and burglary by showing that defendant's purpose when he entered the apartment was strictly to kill Barragan.

While not disputing the issue of error, the Attorney General argues that no possible prejudice could have resulted from the omission of the evidence. We agree that any perceived error was harmless.

At trial Cynthia Ontiveros testified that she, Garcia and defendant planned to rob Zavala and Barragan. She provided details of their planning and of the events leading up to the attack. She also described what happened after the three fled the crime scene, providing particulars concerning defendant's injury, his disposal of the murder weapon, and the washing and return of defendant's car. Although Zavala may have thought it looked like the attackers had come to kill his brother, that would not have been necessarily inconsistent with Ontiveros's testimony and Zavala's other testimony indicating that the two attackers coordinated their efforts to gain access to the apartment, subdue the brothers and obtain whatever "it" was. Additionally, if admitted, Zavala's testimony arguably would have bolstered the theory that Garcia and defendant conspired to rob the brothers and to leave no witnesses. Given all the evidence in the record, as well as the fact that there was no evidence that defendant previously knew or even heard of Barragan, it is highly unlikely that the jury would have believed the motive was other than robbery. [31]

6. Accomplice Corroboration

(19a) Defendant contends that because the sole evidence of burglary and attempted robbery came from the uncorroborated testimony and statements *1128 of accomplice Ontiveros, [32] there was legally insufficient evidence to support the burglary and attempted robbery convictions, the felony-murder theory of first degree murder, and the felony-based special-circumstance findings. Alternatively, defendant contends that even if there was sufficient corroboration, the judgment must be reversed because the jury was inadequately instructed on the principles of accomplice corroboration.

a. Sufficiency of Corroborative Evidence

The law requiring corroboration of accomplice testimony is well established. (20) "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof...." (§ 1111.) "`The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence "may be slight and entitled to little consideration when standing alone. [Citations.]"'" ( People v. Zapien, supra, 4 Cal.4th at p. 982, quoting People v. Miranda (1987) 44 Cal.3d 57, 100 [ 241 Cal. Rptr. 594 , 744 P.2d 1127 ].) "`Corroborating evidence "must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged." [Citation.]'" ( People v. Zapien, supra, 4 Cal.4th at p. 982, quoting People v. Sully (1991) 53 Cal.3d 1195, 1228 [ 283 Cal. Rptr. 144 , 812 P.2d 163 ].) In this regard, "the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.]" ( People v. Perry (1972) 7 Cal.3d 756, 769 [ 103 Cal. Rptr. 161 , 499 P.2d 129 ].) "`Corroborating evidence is sufficient if it substantiates enough of the accomplice's testimony to establish his credibility [citation omitted].'" ( People v. Bunyard (1988) 45 Cal.3d 1189, 1206-1207 [ 249 Cal. Rptr. 71 , 756 P.2d 795 ].)

(19b) In applying the foregoing rules, we find there was substantial corroborative evidence connecting defendant to the crimes in question. Zavala testified that: (1) when he opened the door for Ontiveros, a man with a tire iron and a man with a knife immediately rushed into the apartment and started attacking him and his brother; (2) during course of the attack, the man with the tire iron (whom he later identified as Garcia) asked him, "[?]donde la tienes?" ("where do you have it?"); (3) Zavala assumed that "it" meant money or drugs; (4) after Zavala said that "it" was in the closet, the man with the knife (whom he later described as looking similar to defendant) *1129 told Garcia, "finish him too"; and (5) the two attackers fled when the telephone began ringing and the man with the knife said, "Well let's get out of here the police might going to come [ sic ]."

Although Zavala could not identify defendant with certainty, Vargas could and did. She positively identified defendant and Garcia as the two men who had fled past her window on the night of the crimes, and testified that defendant fled the crime scene with an injured arm. Zavala also testified that the knife-wielding attacker fled with an injured arm, while Dr. Billings testified that on the morning of May 5, 1987, defendant received stitches for an injury to his left arm caused by a sharp instrument. Further corroborating evidence came from Raymond Rodriguez, who admitted that, at defendant's request, he lied about defendant's arm injury and retrieved defendant's car from Ontiveros the morning after the crimes had occurred. Physical evidence also tended to connect defendant to the crimes. Barragan's wounds were consistent with face-to-face stabbings by a left-handed assailant; hospital records reflected that defendant was left-handed. Additionally, traces of blood consistent with defendant's blood type were found inside the handle of the knife found by the police with Ontiveros's help. Finally, blood on a tissue in defendant's car trunk was consistent with the blood of either Zavala or Barragan, but not with the blood of defendant or Garcia.

While defendant apparently concedes that the above evidence sufficiently tends to connect him with Barragan's murder, he claims it does not adequately connect him with an attempted robbery or burglary. (See People v. Reingold (1948) 87 Cal. App.2d 382, 403 [ 197 P.2d 175 ] [circumstances must tend to connect the accused with the specific offense for which he is on trial].) Focusing on the circumstances testified to by Zavala, defendant argues that the unadorned question — "where do you have it?" — does not in itself reflect any intent or attempt to commit the crime of robbery or burglary. In his view, the question is an ambiguous and essentially meaningless question if considered without aid or assistance from Ontiveros's testimony and statements. (See People v. Perry, supra, 7 Cal.3d at p. 769 .) We disagree.

Even though the attackers were not specific in demanding money or drugs, the totality of circumstances testified to by Zavala, even apart from Ontiveros's testimony, clearly justified the jury's determination that an attempted robbery and burglary had taken place. (See, e.g., People v. Jackson (1963) 222 Cal. App.2d 296, 298 [ 35 Cal. Rptr. 38 ] [attempted robbery conviction upheld where evidence established that defendant entered store, pointed a gun at store operator, and said only, "This is it."]; People v. Gilbert (1963) 214 Cal. App.2d 566, 567-568 [ 29 Cal. Rptr. 640 ] [where two armed *1130 men appeared in market shortly after closing time and simultaneously displayed their weapons, one pointing at proprietor near cash drawer and the other herding remaining occupants to rear room, lack of phrase such as "this is a stickup" or "hand over your money" does not bar the reasonable inference that a forceful taking of property was intended].) Although Zavala testified that it was Garcia who demanded where "it" was, the jury could reasonably infer from all the testimony given by Zavala that the attackers coordinated their efforts in a joint plan to rob the brothers. The circumstances additionally supported the inference that the attackers would have succeeded in that plan had it not been for the telephone ringing. [33] (Cf. People v. Zapien, supra, 4 Cal.4th at p. 984 [upholding special circumstance finding that defendant murdered victim during commission of attempted robbery and burglary where jury could reasonably conclude that defendant fled without money or valuables because he knew police had been telephoned].) Contrary to defendant's assertions, there is nothing fanciful or illogical about these inferences.

The record contains more than ample corroborating evidence supporting the burglary and attempted robbery convictions, the conviction for first degree felony murder and the felony-based special-circumstance findings. [34] That being the case, we reject defendant's further contentions that the verdict violates his rights to due process, a reliable guilt determination and other perceived constitutional protections.

b. Instructional Error

After discussions with counsel, the trial court gave the following instructions: CALJIC Nos. 3.11 (testimony of accomplice must be corroborated); 3.12 (sufficiency of evidence to corroborate an accomplice); 3.16 (witness accomplice as matter of law); 3.18 (testimony of accomplice to be viewed with distrust). *1131 Defendant contends the court erred in refusing to give a proposed addition to CALJIC No. 3.11, and in failing to instruct with CALJIC No. 3.13 (one accomplice may not corroborate another). Defendant contends these errors deprived him of due process, a fair jury trial, and reliable guilt, special circumstance and penalty determinations. These contentions are without merit for the reasons set forth below.

Although the trial court gave the standard CALJIC No. 3.11 instruction ("A defendant cannot be found guilty based upon the testimony of an accomplice unless such testimony is corroborated by other evidence which tends to connect such defendant with the commission of the offense."), it refused defendant's request to further instruct that: "As used in this instruction, `testimony' includes statements made out of court as well as statements made in court by an accomplice." (21) Defendant contends this proposed addition was necessary because the prosecutor relied on accomplice Ontiveros's out-of-court statements to police, as well as on her in-court testimony. [35] (See People v. Andrews (1989) 49 Cal.3d 200, 213-214 [ 260 Cal. Rptr. 583 , 776 P.2d 285 ] [holding that § 1111 applies to an accomplice's out-of-court statements when used as substantive evidence of guilt]; People v. Belton (1979) 23 Cal.3d 516, 524-526 [ 153 Cal. Rptr. 195 , 591 P.2d 485 ].) He theorizes that if the jurors had concluded that Ontiveros's out-of-court statements were not testimony, they could have improperly relied on such statements to provide the requisite corroboration for her in-court testimony.

We are not persuaded. Even though the trial court should have given defendant's proposed clarification to avoid any possibility of confusion (see People v. Andrews, supra, 49 Cal.3d at p. 215, fn. 11 ), the refusal to do so was not prejudicial error. The court's instructions made clear that accomplices were to be distrusted, and that their testimony could not furnish the sole basis for a conviction. (See CALJIC Nos. 3.11, 3.12, 3.18.) Moreover, neither the trial court nor the prosecutor ever told or otherwise suggested to the jury that it should distinguish between Ontiveros's out-of-court and in-court statements for purposes of the corroboration requirement. [36] (See People v. Andrews, supra, 49 Cal.3d at pp. 214-215.) When arguing the issue of corroboration during his closing argument, the prosecutor made no mention of Ontiveros's out-of-court statements. Rather, he directed the jury's *1132 attention to the testimony provided by Vargas and Zavala, as well as to the physical evidence such as the presence of defendant's blood type on the retrieved knife, the blood found in defendant's car, and defendant's arm injury.

As we have already demonstrated, such evidence amply tended to connect defendant to the crimes. Based on the strength of that evidence, there is no reasonable probability that the jury would have reached a different result had it been given the clarifying instruction. ( 49 Cal.3d at p. 215 ; People v. Watson, supra, 46 Cal.2d at p. 836 .)

(22a) Defendant next contends that the trial court erred in not giving CALJIC No. 3.13, which provides: "The required corroboration of the testimony of an accomplice may not be supplied by the testimony of any or all of [his] [her] accomplices, but must come from other evidence." According to defendant, this instruction was necessary because the only inference of an intent to rob, apart from the evidence supplied by Ontiveros, came from fellow accomplice Garcia.

Because the corroboration requirement of section 1111 is a substantial right, we address this claim even though defense counsel stated at trial that CALJIC No. 3.13 did not apply. (§ 1259; People v. Andrews, supra, 49 Cal.3d at p. 213 ; People v. Belmontes (1988) 45 Cal.3d 744, 781 [ 248 Cal. Rptr. 126 , 755 P.2d 310 ].) Turning to the merits of the claim, however, we find that the instruction did not apply. Zavala, not Garcia, was the source of the evidence corroborating Ontiveros's testimony that defendant and Garcia intended to rob the brothers. Moreover, even though the evidence offered by Zavala included his recounting of the "[?]donde la tienes?" ("where do you have it?") question originating from Garcia, that evidence falls outside the ambit of section 1111.

(23) "In enacting section 1111, the Legislature intended to eliminate the danger of a defendant being convicted solely upon the suspect, untrustworthy and unreliable evidence coming from an accomplice, who is likely to have self-serving motives that affect his credibility." ( People v. Belton, supra, 23 Cal.3d at p. 526 .) CALJIC No. 3.13, which instructs that one accomplice may not corroborate another, acknowledges this danger in the context of multiple accomplices who may be motivated by self-interest to offer complementary but inaccurate testimony adverse to the defendant.

(24) As a preliminary matter, we address the Attorney General's argument that section 1111 does not apply for the reason that Garcia was not an accomplice because "an `accomplice' is one who testifies at trial." This *1133 argument is without merit. Under section 1111, an accomplice is "defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Italics added.) As our cases make clear, the term "testimony" may refer to extrajudicial statements as well as in-court testimony. ( People v. Andrews, supra, 49 Cal.3d at p. 214 ; People v. Belton, supra, 23 Cal.3d at pp. 524-526.)

(22b) Nonetheless, evidence of Garcia's "[?]donde la tienes?" question did not warrant the giving of CALJIC No. 3.13. Significantly, Garcia made this utterance in defendant's presence during their attack on Zavala and Barragan for the reasonably apparent purpose of facilitating a robbery. Thus, even if the question could be deemed a statement, it clearly was not made to law enforcement officials in the hope of leniency or immunity. (Compare with People v. Belton, supra, 23 Cal.3d at pp. 519, 525.) Garcia's utterance, and the context in which it was made, implicated none of the dangers which section 1111 was intended to address. Under these circumstances, the giving of CALJIC No. 3.13 would have been inappropriate and unnecessary. (Cf. People v. Sully, supra, 53 Cal.3d at p. 1230 [accomplice's excited utterance made in reaction to seeing defendant smash victim's face with sledgehammer was not "testimony" requiring corroboration for purposes of § 1111].)

In sum, these claims of prejudicial instructional error, whether considered singly or together, are without merit. So too are the constitutional challenges predicated on these claims.

7. Conspiracy Instructions

Although defendant was not charged with conspiracy, defense counsel and the prosecutor agreed below that the court should instruct the jury with CALJIC Nos. 6.10.5 (conspiracy and overt act — defined — not pleaded as a crime charged), 6.11 (conspiracy — joint responsibility) and 6.24 (determination of admissibility of coconspirator's statements). [37] (25a) Defendant presently contends the court committed prejudicial error in giving these instructions, particularly with respect to those instructions permitting criminal liability for the declaration of coconspirator.

The Attorney General argues that because defense counsel failed to object to the admission of Garcia's question into evidence, and because counsel affirmatively consented to the conspiracy instructions, defendant may not *1134 now complain that the instructions were given. We agree that counsel's consent to the instructions bars appellate review (see People v. Wader (1993) 5 Cal.4th 610, 658 [ 20 Cal. Rptr.2d 788 , 854 P.2d 80 ] [counsel invited error where he requested reading of challenged penalty phase instruction]), but will address the merits of defendant's claims since he additionally contends that counsel was ineffective.

In challenging the instructions, defendant once again asserts that, apart from accomplice Ontiveros's statements, the only evidence suggesting an intent to rob was Garcia's "[?]donde la tienes?" question. Defendant posits that since he himself never said anything to indicate an intent to rob or steal, the jury could not have found him guilty of attempted robbery, burglary, felony murder or the special circumstances unless it acted on the conspiracy instructions given by the court which allowed it to attribute Garcia's utterance to him as a coconspirator in a plan to rob or steal. [38] Defendant evidently contends that these instructions lacked foundation because an alleged conspiracy to rob or steal had not been sufficiently established by independent proof from some source other than the statements of alleged conspirators. (See People v. Murphy (1943) 60 Cal. App.2d 762, 773 [ 141 P.2d 755 ].) If the conspiracy instructions had not been erroneously given, defendant claims, the jury would not have found against him.

It is firmly established that evidence of conspiracy may be admitted even if the defendant is not charged with the crime of conspiracy. ( People v. Belmontes, supra, 45 Cal.3d at p. 790, citing with approval People v. Jourdain (1980) 111 Cal. App.3d 396, 404 [ 168 Cal. Rptr. 702 ]; People v. Washington (1969) 71 Cal.2d 1170, 1174 [ 81 Cal. Rptr. 5 , 459 P.2d 259 , 39 A.L.R.3d 541 ].) Once there is proof of the existence of the conspiracy there is no error in instructing the jury on the law of conspiracy. ( Ibid. )

To determine whether there was sufficient proof of a conspiracy in this case, we apply the following rules. (26a) "Although the existence of the conspiracy must be shown by independent proof [citation], the showing need only be prima facie evidence of the conspiracy. [Citation.] The prima facie showing may be circumstantial [citation], and may be by means of any competent evidence which tends to show that a conspiracy existed. [Citation.]" ( People v. Jourdain, supra, 111 Cal. App.3d at p. 405 .) Furthermore, the independent proof required to establish the existence of a conspiracy may consist of uncorroborated accomplice testimony. ( People v. Price (1991) 1 Cal.4th 324, 444 [ 3 Cal. Rptr.2d 106 , 821 P.2d 610 ]; People v. Cooks (1983) 141 Cal. App.3d 224, 312 [ 190 Cal. Rptr. 211 ].)

*1135 (25b) We find that accomplice Ontiveros's testimony at trial, standing alone, provided prima facie evidence of a conspiracy. In addition, we find that the existence of a conspiracy was sufficiently established through Zavala's testimony of the events taking place at the apartment.

(26b) Evidence is sufficient to prove a conspiracy to commit a crime "if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]" ( People v. Cooks, supra, 141 Cal. App.3d at p. 311 .) (25c) From what Zavala witnessed and testified to, the jury could reasonably infer that the two male assailants agreed and coordinated with each other and with Ontiveros to forcibly gain access to the apartment for the purpose of robbing or stealing from the brothers. The two assailants gave and took instructions from each other, with Garcia acting on defendant's commands to "finish" Zavala and to get out before the police arrived.

Having reviewed the record, we are satisfied that the trial court properly instructed on the principles of conspiracy. A fortiori, counsel's failure to object to the challenged instructions did not amount to ineffective assistance.

Because no error appears, we reject defendant's related claims that delivery of the conspiracy instructions violated his constitutional rights to due process, a fair trial by jury, and reliable guilt, special circumstance and penalty determinations. We also reject defendant's claim that admission of Garcia's statement deprived him of his right to confront Garcia. ( People v. Brawley (1969) 1 Cal.3d 277, 290-291 [ 82 Cal. Rptr. 161 , 461 P.2d 361 ] [admission of statements under California's coconspirator exception to hearsay rule not violative of federal confrontation clause]; People v. Earnest (1975) 53 Cal. App.3d 734, 743-744 [ 126 Cal. Rptr. 107 ].)

Finally, we reject defendant's state and federal constitutional claims based on the trial court's failure to instruct the jury, sua sponte, that: (1) a finding of the existence of a conspiracy involving defendant cannot be had on uncorroborated accomplice testimony; and (2) the requisite corroboration cannot be supplied by the declaration of a conspirator. The first proposed instruction misstates the law. ( People v. Price, supra, 1 Cal.4th at p. 444 ["The existence of a conspiracy may be proved by uncorroborated accomplice testimony; corroboration of accomplice testimony is needed only to connect the defendant to the conspiracy."].) The second inappropriately attempts to merge the corroboration of accomplice rule with the coconspirator exception to the hearsay rule.

*1136 8. Instructions Regarding Permissible Inferences

Defendant argues that the trial court erred in giving a series of instructions that unfairly permitted the jury to draw critically adverse inferences against him based on evidence of his behavior before, during and after the events in question. Defendant claims that these errors were particularly devastating with respect to the special circumstance allegations, and that they deprived him of due process, a fair jury trial and a reliable jury determination on guilt, special circumstances and penalty. As we will demonstrate, no error appears.

a. CALJIC No. 2.71.7

Over defense objection, the trial court gave CALJIC No. 2.71.7, specifically relating to a defendant's preoffense statements. [39] According to the record, this instruction evidently was given because of Ontiveros's testimony in which she recounted the conversations she had with Garcia and defendant before the murder. (27) Defendant argues that the instruction was not sufficiently supported by the evidence because Ontiveros did not attribute any particular statement to defendant, but referred to defendant as being part of the conversations only when the prosecutor asked leading questions. We conclude otherwise.

Although Ontiveros identified certain statements made specifically to and by Garcia, she repeatedly affirmed that her conversations were with both Garcia and defendant, and that all three of them discussed the plan to get drugs from the brothers. [40] She also testified that, after having discovered that the brothers had no more drugs, she had a conversation with Garcia and *1137 defendant in which they agreed to go up to the apartment and get money instead. Thus, even though Ontiveros did not ascribe any particular statement to defendant, the jurors could reasonably infer from her testimony that defendant made a pre-offense oral statement by actively participating in planning the robbery, or at least by assenting to the plan. CALJIC No. 2.71.7 was properly given.

b. CALJIC No. 2.71.5

At trial, Ontiveros recounted various statements made by Garcia in defendant's presence as the three drove away from the crime scene in defendant's car. In substance, Garcia told Ontiveros that Garcia kept asking Zavala for the money as they were fighting, and that Zavala kept saying it was under the couch. When Garcia made these statements, defendant apparently said nothing. Over the defense's objection, the trial court gave the adoptive admission instruction contained in CALJIC No. 2.71.5. [41]

(28a) Defendant maintains that the court's delivery of CALJIC No. 2.71.5 was improper because the statements identified as the basis for the instruction lacked the foundational requirements of an adoptive admission, in that: (1) the record fails to show that he either heard or had any knowledge of the statements made by Garcia (see Evid. Code, § 1221; People v. Lebell (1979) 89 Cal. App.3d 772, 779-780 [ 152 Cal. Rptr. 840 ]); and (2) Garcia's statements did not accuse or implicate him in any way (see People v. Preston (1973) 9 Cal.3d 308, 313-314 [ 107 Cal. Rptr. 300 , 508 *1138 P.2d 300]). (29), (28b) Defendant claims that the giving of the instruction under these circumstances was erroneous in light of People v. Hannon (1977) 19 Cal.3d 588, 597 [ 138 Cal. Rptr. 885 , 564 P.2d 1203 ], which held: "It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference."

Although defense counsel objected to the giving of CALJIC No. 2.71.5, he did not object on foundational or other grounds when evidence of Garcia's statements was admitted. Because counsel failed to object to admission of the evidence, the Attorney General argues that defendant waived any instructional error claim. Defendant disagrees. He asserts that Garcia's statements were not offered or admitted into evidence as an adoptive admission, and that in any event, People v. Hannon, supra, 19 Cal.3d 588 , precludes a finding of waiver. In that case we held that the lack of objection to admission of testimony does not waive the right to appellate review of the propriety of jury instructions affecting the substantial rights of a defendant. ( 19 Cal.3d at p. 600 [deciding issue in context of CALJIC No. 2.06]; see § 1259.)

Even if the claim is not deemed waived, it fails for lack of merit. As the Attorney General points out, aside from Garcia's postoffense statements, there was evidence in the record that prior to the crimes, defendant was with Ontiveros and Garcia when the plan to rob the victims was discussed. In response to the prosecutor's questions, Ontiveros confirmed: (1) that "the three of [them] discuss[ed] the plan"; (2) that she told Garcia and defendant that she "would go up to the door. And they knew me, so I knew that they would open the door. And at that point, ... that they could rush in after me"; (3) that she told Garcia and defendant that "they wouldn't need no weapons"; and (4) that she did not remember either Garcia or defendant disagreeing or taking issue with that. (See fn. 40, ante. ) Inasmuch as defendant was a party to the discussions, it may be reasonably inferred that he was afforded the opportunity to refuse to participate or to otherwise dissociate himself from the planned activity; but that he did not do so. Such evidence, which indicated that defendant participated without demur in the planning of a robbery, warranted the inference that an adoptive admission had been made. (See People v. Fauber (1992) 2 Cal.4th 792, 852 [ 9 Cal. Rptr.2d 24 , 831 P.2d 249 ].)

c. CALJIC Nos. 2.03, 2.04 and 2.06

Over the defense's objection, the trial court gave several jury instructions relating to statements or efforts by defendant which might tend to prove a *1139 consciousness of guilt: CALJIC No. 2.03 (consciousness of guilt — falsehoods); CALJIC No. 2.04 (efforts by defendant to fabricate evidence); and CALJIC No. 2.06 (efforts to suppress evidence). [42] (30) Defendant argues that it was prejudicial error to give these instructions, and that he was thereby deprived of his federal constitutional rights to due process, a fair trial by jury, and reliable guilt, special circumstance and penalty determinations. We are not persuaded.

First, defendant contends that CALJIC No. 2.04 was erroneously given because there was insufficient evidence in the record to warrant any inference that he had attempted to persuade a witness to "testify" falsely, or tried to fabricate evidence "to be produced at trial." While acknowledging that his brother admitted at trial that defendant had asked him to lie about defendant's arm injury, defendant nevertheless maintains that his brother's testimony fell outside the scope of CALJIC No. 2.04 because the incident occurred before judicial proceedings had been initiated. We cannot agree.

CALJIC No. 2.04 does not require judicial proceedings to actually be in progress when the attempt to procure false testimony or to fabricate evidence is made. It was sufficient that the jury could reasonably infer from the incident that defendant expected his brother to be a witness in the event of a trial, or that defendant sought to fabricate evidence in anticipation of a trial.

Next, defendant contends that CALJIC No. 2.06 was erroneously given because the evidence did not support the prosecutor's rationale for the instruction, i.e., that defendant threw away or otherwise destroyed or concealed the knife used in the attack, as well as his bloodstained clothes. We are not convinced.

Ontiveros testified that as Garcia and defendant were discussing the knife on the way home after the attack, she felt a blast of air in the car as if *1140 defendant had rolled down the backseat window. Although Ontiveros admitted she did not actually see defendant toss the knife out, she never saw it again and authorities later found the knife in the area where she thought it had been thrown. CALJIC No. 2.06 was therefore properly given because the jury could reasonably infer from this evidence that defendant attempted to suppress evidence. (See, e.g., People v. Fitzpatrick (1992) 2 Cal. App.4th 1285, 1296-1297 [ 3 Cal. Rptr.2d 808 ] [CALJIC No. 2.06 properly given based on circumstantial evidence indicating that defendant threw murder weapon down gutter].) [43]

Finally, defendant claims that the trial court should have modified CALJIC Nos. 2.03, 2.04 and 2.06 to apply only to the murder charge and not to the charges of attempted robbery, burglary and the corresponding special circumstances. Again, defendant argues there was insufficient evidence corroborating Ontiveros's testimony regarding defendant's involvement in the latter crimes. This claim must be rejected.

In the first place, if defendant believed the instructions required clarification or modification, it was incumbent upon him to request it. ( People v. Johnson, supra, 3 Cal.4th at p. 1236.) In any case, the unmodified instructions correctly guided the jury's consideration of the evidence because, as we have previously explained, there was ample corroborating evidence tending to connect defendant to the planned robbery and burglary, as well as to the murder. Additionally, it must be remembered that the defense relied on an all-or-nothing strategy to cast doubt solely on the issue of identity. Certainly the trial court had no sua sponte duty to make instructional modifications that were arguably inconsistent with, or even detrimental to, that strategy. [44]

In sum, the jury would not have been unreasonable in drawing inferences that defendant's false statements about his arm injury, his attempt to persuade his brother to lie and his effort to get rid of the knife all tended to show consciousness of guilt of all the charged crimes. Defendant's conduct was clearly probative on the issue of identity of the second assailant who was seen fleeing the crime scene with an injured arm. No error appears. (See People v. Lewis (1990) 50 Cal.3d 262, 276 [ 266 Cal. Rptr. 834 , 786 P.2d 892 ] [rejecting argument that standard CALJIC No. 2.03 should have been *1141 tailored to require some relationship between defendant's false statements and various crimes charged].)

d. Cumulative Effect of Instructions

Defendant argues that the erroneous delivery of CALJIC Nos. 2.71.5, 2.71.7, 2.03, 2.04 and 2.06, whether considered singly or together, deprived him of his constitutional rights. He is mistaken. Inasmuch as none of the five instructions was erroneous, it is inconceivable that defendant's constitutional rights were violated.

9. Instructions Regarding Circumstantial Evidence and Requisite Mental States

Pursuant to defense counsel's wishes, the trial court gave CALJIC No. 2.01, which instructs on the sufficiency of circumstantial evidence to prove a defendant's guilt, [45] rather than CALJIC No. 2.02, which instructs more specifically on the sufficiency of circumstantial evidence to prove a defendant's specific intent or mental state. [46] (31a) Defendant now contends the court erred in failing to instruct sua sponte on CALJIC No. 2.02. He claims *1142 the error was prejudicial because the prosecutor relied substantially, if not exclusively, upon circumstantial evidence to prove the requisite mental states for the crimes charged.

(32) "It is the general rule that a trial court is not required to instruct on the rules of law applicable to circumstantial evidence where the alleged circumstantial evidence is incidental to, and corroborative of, direct evidence. [Citations.]" ( People v. Malbrough (1961) 55 Cal.2d 249, 250-251 [ 10 Cal. Rptr. 632 , 359 P.2d 30 ].) Moreover, "when the only inference to be drawn from circumstantial evidence points to the existence of a requisite mental state, a circumstantial evidence instruction need not be given sua sponte." ( People v. Morrisson (1979) 92 Cal. App.3d 787, 794 [ 155 Cal. Rptr. 152 ].) Although defendant and the Attorney General agree that substantial circumstantial evidence was presented below, they disagree as to whether such evidence was merely incidental to the direct evidence, and whether it gave rise to only one rational inference regarding the requisite mental state.

We need not resolve these disputed issues. (31b) Because the trial court delivered the more inclusive instruction under CALJIC No. 2.01, its refusal to additionally instruct with CALJIC No. 2.02 clearly was not prejudicial error. ( People v. DeLeon (1982) 138 Cal. App.3d 602, 608 [ 188 Cal. Rptr. 63 ]; see People v. Bloyd (1987) 43 Cal.3d 333, 352 [ 233 Cal. Rptr. 368 , 729 P.2d 802 ].)

(33) Defendant next contends the trial court erred in failing to instruct with a modified version of CALJIC No. 3.31 (concurrence of act and specific intent). While conceding that the trial court's unmodified instruction was correct with respect to the specific intent crimes of burglary, attempted robbery and the felony-murder theory of first degree murder, defendant maintains it was inadequate with respect to the prosecutor's other theory of willful, deliberate and premeditated murder. [47] In essence, his position is that the unmodified instruction could have led a reasonable juror to conclude that this theory did not require concurrence of act and the mental states of premeditation and deliberation.

If defendant believed that a modification to CALJIC No. 3.31 was required, he was obligated to request it. In any event, the court's instructions, *1143 when considered as a whole, properly guided the jury's consideration of the evidence. ( People v. Wilson (1992) 3 Cal.4th 926, 943 [ 13 Cal. Rptr.2d 259 , 838 P.2d 1212 ].) Immediately after delivering CALJIC No. 3.31, the court gave CALJIC No. 8.20 on the elements of willful, deliberate and premeditated murder, including the instruction: "If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree." This instruction adequately expressed the need for joint operation of act and intent on that theory. ( People v. Kozel (1982) 133 Cal. App.3d 507, 522 [ 184 Cal. Rptr. 208 ]; cf. People v. Benjamin (1975) 52 Cal. App.3d 63, 84-85 [ 124 Cal. Rptr. 799 ].)

(34a) Defendant next contends that the trial court committed prejudicial error by giving an inadequate version of CALJIC No. 8.83.1 (special circumstances — sufficiency of circumstantial evidence to prove required mental state), by failing to give CALJIC No. 8.83 (special circumstances — sufficiency of circumstantial evidence — generally) and by failing to give CALJIC No. 3.31 as to the special circumstance allegations (concurrence of act and specific intent). We disagree.

First, we are not persuaded by defendant's assertion that the court's version of CALJIC No. 8.83.1 was misleading in referring to the term "required mental state" in the singular rather than plural form, or in failing to list each of the required mental states to which it applied. Even if defendant's failure to request such clarifications below is disregarded, the point is not well taken. As defendant himself points out, the court instructed on the mental state required for each of the special circumstances (CALJIC No. 8.81.17) immediately before reading the circumstantial evidence instruction. [48] Considering the instructions as a whole, no reasonable juror would *1144 have understood the challenged instruction not to apply to each of the requisite mental states. There was no error. [49]

(35) We are likewise unconvinced by defendant's next argument that the court's failure to give CALJIC No. 3.31 as to the special circumstance allegations permitted the jury to conclude that concurrence of act and specific intent was not required in order to find such allegations true. Assuming the court's omission constituted error (see Use Note to CALJIC No. 8.83.1; Use Note to CALJIC No. 2.02), the instructions, when considered as a whole, properly guided the jury's consideration of the evidence. ( People v. Wilson, supra, 3 Cal.4th at p. 943.) The jury was instructed that CALJIC No. 3.31 applied with respect to the underlying crimes of burglary and attempted robbery. It was also instructed pursuant to CALJIC No. 8.81.17. (See fn. 48, ante. ) A reasonable juror receiving these instructions would have understood that concurrence of act and specific intent was required for the special circumstance allegations, and could not have believed otherwise. (See People v. Mickey (1991) 54 Cal.3d 612, 676 [ 286 Cal. Rptr. 801 , 818 P.2d 84 ].) The perceived error was harmless under any standard. ( Ibid. )

(34b) Further, we find without merit the argument that, since the prosecutor substantially relied upon circumstantial evidence to prove that defendant's "purpose" in committing the charged murder was to carry out the *1145 burglary or attempted robbery, or alternatively, to facilitate escape or to avoid detection, CALJIC No. 8.83 should have been given instead of CALJIC No. 8.83.1. As indicated previously, the court's version of CALJIC No. 8.83.1 instructed on the sufficiency of circumstantial evidence to prove the required "mental state" for the special circumstance allegations. (See fn. 48, ante. ) A reasonable juror would have understood this instruction to apply to the circumstantial evidence concerning defendant's purpose in committing the murder. No error appears.

In sum, we conclude that none of the perceived instructional errors, whether considered singly or together, warrants the reversal of defendant's conviction. We come to this conclusion whether we employ the "reasonable probability" test or the less tolerant "reasonable doubt" test. Likewise, we find no violation of defendant's state or federal constitutional rights.

10. Reasonable Doubt Instruction

Without any defense objection, the trial court gave the standard version of CALJIC No. 2.90 at the close of the guilt phase. Defendant now claims that this instruction, which defines "reasonable doubt" as that state of mind in which the jurors "cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge," is constitutionally defective in light of Cage v. Louisiana (1990) 498 U.S. 39 [ 112 L.Ed.2d 339 , 111 S.Ct. 328 ]. This claims fails.

We have consistently rejected similar claims in the past. ( People v. Webb (1993) 6 Cal.4th 494, 531 [ 24 Cal. Rptr.2d 779 , 862 P.2d 779 ]; People v. Sims (1993) 5 Cal.4th 405, 456-457 [ 20 Cal. Rptr.2d 537 , 853 P.2d 992 ]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [ 15 Cal. Rptr.2d 400 , 842 P.2d 1160 ].) Recently, the United States Supreme Court upheld the constitutionality of CALJIC No. 2.90. ( Victor v. Nebraska (1994) 511 U.S. ___ [ 127 L.Ed.2d 583 , 114 S.Ct. 1239 ], affirming People v. Sandoval (1992) 4 Cal.4th 155 [ 14 Cal. Rptr.2d 342 , 841 P.2d 862 ].) Although the high court criticized the instruction's use of the term "moral certainty" ( Victor v. Nebraska, 511 U.S. at pp. ___ [127 L.Ed.2d at pp. 595-596, 114 S.Ct. at pp. 1247-1248], "it is clear that giving CALJIC No. 2.90 is not error, at least not yet." ( People v. Freeman, ante, 450, 503 [ 34 Cal. Rptr.2d 558 , 882 P.2d 249 ], italics added.)

Even though we reject defendant's challenge to the use of CALJIC No. 2.90 at his trial, we remain mindful of the concerns expressed in Victor v. Nebraska, supra, 511 U.S. ___ [ 127 L.Ed.2d 583 , 114 S.Ct. 1239 ]. We therefore reiterate that, until the Legislature or the CALJIC committee acts on this matter, trial courts in future cases should consider the modifications suggested in People v. Freeman, supra, ante, at pages 503-504.

*1146 11. Effect of Alleged Errors

Defendant claims that the various asserted errors, both singly and in combination, denied him due process and undermined the reliability of the guilt verdicts. Whether or not expressly discussed, we have considered and rejected all of these claims as being without merit. No more need be said. (See People v. Mickle (1991) 54 Cal.3d 140, 197 [ 284 Cal. Rptr. 511 , 814 P.2d 290 ].) [50]

C. PENALTY PHASE ISSUES

1. Jury Selection

(36a) Defendant contends the trial court erred and violated his federal and state constitutional rights in granting the prosecutor's request to exclude prospective jurors Grace Levario and Melissa Cassiday for cause based on their stated views about the death penalty. Defendant is mistaken.

The United States Supreme Court has held that a prospective juror may be excluded for cause without compromising a defendant's rights under the Sixth and Fourteenth Amendments to trial by an impartial jury if the juror's views on capital punishment "`would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" ( Wainwright v. Witt (1985) 469 U.S. 412, 424 [ 83 L.Ed.2d 841, 851-857 , 105 S.Ct. 844 ], fn. omitted; see Darden v. Wainwright (1986) 477 U.S. 168, 175-178 [ 91 L.Ed.2d 144, 153-156 , 106 S.Ct. 2464 ].) We apply the same standard to claims under our state Constitution. ( People v. Guzman (1988) 45 Cal.3d 915, 955 [ 248 Cal. Rptr. 467 , 755 P.2d 917 ]; People v. Ghent (1987) 43 Cal.3d 739, 767 [ 239 Cal. Rptr. 82 , 739 P.2d 1250 ].) A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. (See People v. Guzman, supra, 45 Cal.3d at pp. 954-956.)

(37) Generally, "the qualification[s] of jurors challenged for cause are `matters within the wide discretion of the trial court, seldom disturbed on appeal.' [Citation.]" ( People v. Kaurish (1990) 52 Cal.3d 648, 675 [ 276 Cal. Rptr. 788 , 802 P.2d 278 ].) There is no requirement that a prospective juror's bias against the death penalty be proven with unmistakable clarity. *1147 ( Wainwright v. Witt, supra, 469 U.S. at p. 424 [83 L.Ed.2d at pp. 851-852]; People v. Guzman, supra, 45 Cal.3d at p. 954.) Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror. ( People v. Hill (1992) 3 Cal.4th 959, 1003 [ 13 Cal. Rptr.2d 475 , 839 P.2d 984 ]; People v. Guzman, supra, 45 Cal.3d at p. 954.) Accordingly, "[w]hen ... a juror gives conflicting testimony as to her capacity for impartiality, the determination of the trial court on substantial evidence is binding on the appellate court." ( People v. Kaurish, supra, 52 Cal.3d at p. 675; see also People v. Clark (1993) 5 Cal.4th 950, 1025 [ 22 Cal. Rptr.2d 689 , 857 P.2d 1099 ]; People v. Hill, supra, 3 Cal.4th at p. 1004.)

(36b) In this case, the voir dire of prospective jurors Levario and Cassiday amply supported the trial court's decision to exclude them. Although some of Levario's responses during questioning could be construed as reflecting her capacity for impartiality, others furnished substantial evidence of her inability to conscientiously consider a death verdict. [51] Similarly, while Cassiday's initial answers reflected impartiality, her later responses raised sufficient doubts as to whether she could impose the death penalty in this case. [52] Given this record, defendant's claims of state and constitutional error must be rejected. ( People v. Clark, supra, 5 Cal.4th at pp. 1025-1026; People v. Hill, supra, 3 Cal.4th at p. 1004.)

*1148 2. Espinoza Homicide

On June 6, 1980, Ernest Espinoza died after being shot and stabbed at a pay telephone in Oakland, California. Defendant and five others were charged with the murder of Espinoza. Defendant was alleged to have been armed with a firearm, and to have suffered a prior felony conviction. Codefendant Raymond Rodriguez (defendant's brother) was alleged to have personally used a firearm, and codefendant Toby Jaramillo was alleged to have personally used a deadly weapon. Pursuant to a plea bargain in August 1980, defendant pleaded guilty to being an accessory under section 32, and the arming and prior conviction allegations were dismissed. Raymond pleaded guilty to manslaughter with personal use of a rifle, and Jaramillo pleaded guilty to manslaughter with personal use of a knife. A fourth codefendant pleaded guilty to felony assault with a deadly weapon. Charges against the fifth and sixth codefendants were dismissed.

At the penalty phase, the prosecutor introduced evidence in aggravation of defendant's participation in the Espinoza homicide (§ 190.3, factor (b)) and evidence of his conviction as an accessory (§ 190.3, factor (c)). Defendant challenges the admission of this evidence on three grounds. First, he claims that the prosecutor violated the notice provisions of section 190.3 and used deceptive tactics in introducing the identification testimony of witness Rejon Mitchell. Second, he contends that no evidence of the Espinoza homicide should have been admitted because the murder charge filed against defendant in that case had been dismissed pursuant to a plea bargain, and the charge was stale. Third, he argues that the court erred in allowing defendant's conviction in the Espinoza matter to be characterized as accessory to a murder. As we shall demonstrate, none of these claims warrants reversal of the death judgment.

a. Mitchell's Identification Testimony

Defendant contends that the prosecutor violated the notice provisions of section 190.3 and misled defense counsel in presenting Rejon Mitchell's "surprise" testimony identifying defendant as the actual shooter of Espinoza.

*1149 The background of this contention is as follows. On September 11, 1987, the prosecutor filed notice of his intention to introduce at the penalty phase evidence in aggravation concerning "[t]he incident occurring on or about June 6, 1980, in Oakland, California, in which the defendant participated in the stabbing and shooting of ERNEST ESPINOZA, resulting in his death." The trial in this case commenced on April 11, 1988. On April 13, 1988 and on May 23, 1988, the prosecutor served two amended notices, again specifying the Espinoza incident.

On August 1, 1988 (after the close of the guilt phase), the trial court held a hearing on a defense motion to exclude evidence of the Espinoza homicide as an aggravating factor. Defense counsel essentially argued that the evidence should not be admitted under section 190.3, factor (b) because the preliminary hearing transcript from the Espinoza case did not establish that defendant engaged in any violence, attempted violence, threat of violence or implied violence. When the court asked the prosecutor whether he intended to offer any evidence in addition to the preliminary hearing transcript, the prosecutor replied: "I've indicated, the People's investigator to the defense investigator, that there are potentially several additional witnesses at the crime scene who may be called to testify about what they observed, which would include observing [defendant] accompanying a group of nine, as they've been referred to, at the time of the killing of Ernest Espinoza. It's consistent with what Danny Nunez testified to at the preliminary hearing, it would certainly place [defendant] at the scene of the crime at the time of the commission of the crime."

After further discussions, the court asked: "So what I need to know is do you have any evidence that would place the defendant in a position where he is more responsible for the act than what is shown in the preliminary examination and, of course, I don't know what's in the transcript." The prosecutor replied: "That's difficult to answer at this time because some of the witnesses have just been located very recently, and I haven't had a chance to actually interview them...." Thereafter the prosecutor stated: "There's the possibility that there may be a witness who places [ defendant ] as the actual shooter. If that were to be the case, obviously that would be a —." (Italics added.) The court indicated it would make a preliminary determination under Evidence Code section 402 [53] of the admissibility of the Espinoza homicide evidence based on the transcript, but would also listen to additional witness evidence if offered.

*1150 Subsequently, the prosecutor argued that the evidence showed that defendant was at least an aider and abettor in the Espinoza killing, if not the actual shooter: "All of the surrounding circumstances indicate that [defendant] had a vendetta or score to settle with certain members of the group of the 60's, because of a confrontation that took place earlier in the day in front of the church; a confrontation in which a shot was fired by one of the members of the Varrio San Leandro, which the independent witnesses I have had a chance to talk with so far indicate they believe was, in fact, [defendant]. [¶] This morning I indicated to the court that there's at least the possibility that another witness will be contacted who observed the shooting of Ernest Espinoza, and places the shooter as [defendant] as opposed to Raymond, the brother. [¶] I haven't had a chance to confirm that with that witness yet because that person is presently out of state. So that's only a possibility. [¶] I bring it up at this point only insofar as that became apparent to this [ sic ] earlier today; and, therefore, out of an abundance of caution in wanting to share that with the court and counsel, I wanted to bring it up...." Defense counsel responded that the prosecutor was taking great liberties with the facts, and that the evidence showing defendant's involvement in a previous murder was highly prejudicial and would foreclose the jury's ability to look rationally at other evidence presented during the penalty phase. The trial court ultimately ruled there was sufficient evidence showing that defendant was involved in the incident, at least as an aider and abettor.

The penalty phase commenced before the jury on August 2, 1988. On August 3, the prosecutor called Rejon Mitchell as a witness. Defense counsel did not object when Mitchell took the stand. Mitchell testified he was in his house when he heard gunshots. He looked out the window, and saw a group of men at a gas station watching another man shoot at Espinoza. After the shooting, the group ran by Mitchell's house. Mitchell opened his front door and could see the group, including the shooter, about 15 to 20 feet away.

After eliciting the above testimony, the prosecutor pursued the following line of questioning. "Q [Prosecutor]: Did you get a look at the shooter? A [Mitchell]: I did. Q: Subsequent to that, during the investigation by the Oakland Police Department, did you look at some photographs? A: Yes, I did. Q: And did you pick somebody out as the shooter? A: Yes, I did. Q: I realize this is some years ago this event has happened. [¶] Do you still recall what the shooter looked like? A: Yes. Q: I'd ask you to look around the courtroom and see if you see that person in court today. A: Yes. Q: Would you tell the jury where that person is now, and what he's wearing? A: The defendant sitting right there in the yellow top sweater (indicating). Q [Prosecutor]: May the record reflect identification with reference to the defendant *1151 Mr. Rodrigues, your honor? The court: The record will so reflect. Q [Prosecutor]: Now, you said you had a chance to see the persons in the group. [¶] Were you able to, in looking at them from the vantage point you had —." At this point, defense counsel interjected: "Your honor, I'm going to object to any last question and any further questions on the basis of collateral estoppell [ sic ]. [¶] This is, apparently, an attempt to prove [defendant] is the shooter. The District Attorney is aware somebody else was found guilty of that. [¶] I believe that's totally improper." The trial court overruled the objection.

Afterwards, outside the presence of the jury, defense counsel reiterated his argument to the court that Raymond Rodriguez's prior plea to manslaughter and defendant's own plea to accessory barred the prosecution from trying to prove that defendant shot Espinoza. The prosecutor responded that the jury was free to determine, based on all the evidence presented, whether Raymond or defendant killed Espinoza. The prosecutor further stated: "I know when I came to court a few days ago, and said there was one witness we were looking for who might possibly place, who saw [defendant] as the shooter, it was Rejon Mitchell that I was thinking of. [¶] I finally had an opportunity to talk to him today. Until he had a chance to look around the courtroom, I was not able to determine for sure whether he was going to say, `Arnaldo Rodrigues' or say, `No, it was someone else who looked similar, but that's not him.' [¶] The jury, as I understand it, is free to either accept or reject the admissions of all types that are given to them. And they are not bound by a prior adjudication in the form of the taking of a plea." The court then concluded that the collateral estoppel rule was inapplicable. Thereafter defense counsel made no other argument.

It was not until the next morning, after the direct, cross- and redirect examination of Rejon Mitchell had been completed, that defense counsel complained about the prosecutor's failure to alert the defense that Mitchell would identify defendant as Espinoza's killer. At that time, defense counsel requested the trial court to dismiss the case pursuant to section 1385.

The trial court denied the request, concluding that the prosecutor had adequately advised the court and counsel about the possibility of a witness who would identify defendant as the shooter. In finding there was no misconduct, the court noted that the prosecutor's previous statements had been consistent with the witness's own testimony that he was out of town in another county. The court then granted defense counsel a continuance from that Thursday morning to the following Monday to determine the availability of physical evidence in the Espinoza case, and the need for a further continuance. The next day, August 5, defendant filed a formal motion for mistrial.

*1152 On Monday, August 8, the prosecutor informed the court that the physical evidence in the eight-year-old Espinoza case had been either returned or destroyed after the completion of that case. There were, however, some tape-recorded statements of witnesses, including one of Rejon Mitchell, that were found and were made available to the defense. After hearing arguments, the court denied the mistrial motion, but granted the defense an additional one-week continuance until August 15 to prepare on the Espinoza incident.

At a status hearing on August 10, defense counsel reported he could not complete his investigation by August 15 and requested another one-week continuance. After counsel detailed the work still remaining, the court ordered the prosecutor to proceed on penalty phase evidence other than the Espinoza incident on August 15, and indicated that at the end of that day, the defense would be allowed to show good cause for a further continuance.

On August 15, defense counsel did not request any further continuances. The prosecutor resumed his presentation of evidence on the Espinoza matter the next day, and the defense thereafter presented its side.

(38a) On appeal, defendant argues that the motion for mistrial under section 1385 should have been granted because the prosecutor: (1) failed to give notice of the identification evidence under section 190.3; and (2) committed misconduct which incurably prejudiced defendant's case. We first address the argument that the notice provisions of section 190.3 were violated.

Section 190.3 provides in pertinent part: "Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation." (39) The purpose of this provision "is to advise an accused of the evidence against him so that he may have a reasonable opportunity to prepare a defense at the penalty trial. [Citation.]" ( People v. Taylor (1990) 52 Cal.3d 719, 736 [ 276 Cal. Rptr. 391 , 801 P.2d 1142 ].) However, "where the prosecution learns of evidence it intends to use in aggravation at the penalty phase for the first time after trial has commenced, exclusion of this evidence under section 190.3 is not necessarily compelled. [Citation.] Under such circumstances, the defendant is entitled to prompt notice of the newly discovered evidence, and, if necessary, to a reasonable continuance to enable him or her to prepare to *1153 meet that evidence. If the prosecution's delay in affording notice is unreasonable or unexcused, or if the delay would prejudice the defense, the court must exclude the evidence. [Citations.]" ( People v. Mitcham (1992) 1 Cal.4th 1027, 1070 [ 5 Cal. Rptr.2d 230 , 824 P.2d 1277 ].)

(38b) Defendant's claim that the prosecutor failed to give the required statutory notice must be rejected. First of all, the claim is barred. Defense counsel did not object on notice grounds when Mitchell took the stand and gave his testimony, even though counsel knew that Mitchell would be testifying on the Espinoza matter and that Mitchell's name had not been included on the prosecutor's penalty phase witness list. Although defense counsel raised the notice issue the next day, his failure to do so earlier effected a waiver of the point. (See People v. Clark (1990) 50 Cal.3d 583, 626, fn. 34 [ 268 Cal. Rptr. 399 , 789 P.2d 127 ] [defendant's failure to object and to seek a continuance waives any subsequent claim that notice was inadequate]; cf. People v. Newberry (1962) 204 Cal. App.2d 4, 9 [ 22 Cal. Rptr. 23 ] [motion to strike expert opinion testimony properly denied where defense counsel waited until after testimony was admitted to challenge witness's qualifications as an expert].)

Even assuming that the claim was not waived, it is without merit. The prosecutor notified defendant several months before the start of trial that he intended to introduce evidence in aggravation of "[t]he incident occurring on or about June 6, 1980, in Oakland, California, in which the defendant participated in the stabbing and shooting of ERNEST ESPINOZA, resulting in his death." This notice gave ample warning to the defense that it should anticipate the prosecutor to introduce at the penalty phase all admissible evidence relevant to defendant's participation in the Espinoza homicide. Although Mitchell's name was not listed on the prosecutor's July 26, 1988, list of penalty phase witnesses, the prosecutor did not know at that time that Mitchell might potentially be able to identify defendant as a person who shot Espinoza. Once the prosecutor learned of the potential new evidence, he acted promptly in informing both the court and the defense. Under these circumstances, no violation of section 190.3 appears. ( People v. Mitcham, supra, 1 Cal.4th at p. 1070.)

Finally, any lack or delay in notice must be deemed harmless. "In the absence of any indication that the delay in notice had in some fashion affected the manner in which defense counsel handled the prior proceedings, the appropriate remedy for a violation would ordinarily be to grant a continuance as needed to allow defendant to develop a response. [Citations.]" ( People v. Carrera (1989) 49 Cal.3d 291, 334 [ 261 Cal. Rptr. 348 , 777 P.2d 121 ].) Here the trial court granted the defense a continuance of 11 *1154 calendar days to prepare to meet the Mitchell testimony. When the trial finally resumed, defense counsel did not ask for more time. We therefore conclude that the defense was not prejudiced by the delay in notice. [54]

(40a) We next consider defendant's claim that the motion for mistrial should have been granted because of the prosecutor's gross misconduct. In particular, he claims that the prosecutor affirmatively misled the defense by indicating he did not have specific names of potential witnesses who might be able to identify defendant as Espinoza's shooter, when in fact the names of Rejon Mitchell and his brother Eric Mitchell were known to him. He also asserts that the prosecutor intentionally violated discovery orders and failed to abide by an express assurance to notify the defense when the identification witnesses were located so that a defense investigator could be present during any questioning of the witnesses prior to their testimony at trial.

(41) Prosecutorial misconduct may constitute an appropriate basis for a mistrial motion. (See People v. Wharton (1991) 53 Cal.3d 522, 565 [ 280 Cal. Rptr. 631 , 809 P.2d 290 ].) "`A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.]" ( Ibid. )

(40b) Applying these principles, we conclude the denial of defendant's mistrial motion was not an abuse of discretion. To begin with, there is substantial evidence in the record to support the trial court's determination that the prosecutor did not act in bad faith. The prosecutor promptly informed the court and defense counsel of the possibility of identification witnesses immediately after receiving the information. Although the prosecutor admittedly failed to tell the defense that it was Rejon Mitchell who might potentially identify defendant, the prosecutor had not been able to speak to Mitchell to ascertain his probable testimony until the day he took the stand. Viewed as a whole, the record adequately supports the conclusion that the prosecutor did not act intentionally to mislead the defense.

More importantly, even assuming that the prosecutor committed misconduct, the record fails to show that the trial court abused its discretion in *1155 determining that defendant was not incurably prejudiced. In this regard, defendant claims that the requisite prejudice existed because the prosecutor's actions permanently deprived him of the opportunity to test Mitchell's ability to make an identification in a nonsuggestive atmosphere. Insofar as defendant contends that an in-court identification not preceded by a lineup is impermissibly suggestive and prejudicial as a matter of law, he is wrong. (Cf. Evans v. Superior Court (1974) 11 Cal.3d 617, 625 [ 114 Cal. Rptr. 121 , 522 P.2d 681 ] [holding there is no absolute right to a pretrial lineup before an in-court identification; rather, upon timely request, defendant may be afforded a pretrial lineup if eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve].) He is also mistaken in his assertion that once Mitchell made his in-court identification of defendant, "there was no effective way to ameliorate its impact and no way to balance the playing field between the prosecution and defense." To the contrary, it has long been recognized that "[i]n the case of in-court identifications not preceded by a lineup ..., the weaknesses, if any, are directly apparent at the trial itself and can be argued to the court and jury without the necessity of depending on an attempt to picture a past lineup by words alone." ( People v. London (1969) 274 Cal. App.2d 241, 242-243 [ 78 Cal. Rptr. 848 ]; see People v. Breckenridge (1975) 52 Cal. App.3d 913, 935-936 [ 125 Cal. Rptr. 425 ] [noting continuing validity of principle after Evans v. Superior Court, supra, 11 Cal.3d at p. 625 ].) No abuse of discretion appears. [55]

(42) Finally, relying on Lankford v. Idaho (1991) 500 U.S. 110 [ 114 L.Ed.2d 173 , 111 S.Ct. 1723 ], defendant claims that the prosecutor's misconduct and violation of section 190.3 violated his federal constitutional rights to due process, confrontation and a reliable penalty determination, among others. Not only have these constitutional claims been waived by the failure to assert them at trial ( People v. Ashmus, supra, 54 Cal.3d at pp. 972-973, fn. 10), they lack merit.

In Lankford v. Idaho, supra , the United States Supreme Court concluded that a defendant was denied due process when a trial judge imposed the death penalty after the prosecution had given notice that it would not recommend death. In reversing the judgment of death, the court observed that the character of the sentencing proceeding did not provide the defendant with any indication that the trial judge contemplated death as a possible *1156 sentence. (500 U.S. at pp. 119-120 [114 L.Ed.2d at pp. 183-184].) The court reasoned that if defense counsel had been notified that death was being contemplated, presumably she would have advanced arguments addressing the impropriety of such a sentence. ( Id., at p. 122 [ 114 L.Ed.2d at p. 185 ]). Significantly, the high court was not concerned with whether the defendant's arguments would ultimately prevail; rather, it framed the critical issue as "whether inadequate notice concerning the character of the hearing frustrated counsel's opportunity to make an argument that might have persuaded the trial judge to impose a different sentence, or at least to make different findings than those he made." ( Id., at p. 124 [114 L.Ed.2d at pp. 186-187].)

Defendant's attempted analogy to Lankford v. Idaho, supra, 500 U.S. 110 , is unavailing. Unlike the situation there, the defense here was given ample opportunity to meet the challenged evidence and to persuade the jury of its case. As noted previously, the trial court granted the defense 11 days to prepare to meet Mitchell's testimony. At the end of that period, the defense sought no further continuance. When the trial resumed, the defense was able to introduce an array of witnesses to rebut Mitchell's testimony. The defense called Lieutenant Burnham Matthews, who had investigated the Espinoza killing and had twice interviewed Mitchell the day after the shooting. According to Matthews, Mitchell did not identify defendant, and the records of the investigation did not show that Mitchell had ever been shown a photographic lineup, or that he had ever made any identification. The defense also offered favorable testimony through four witnesses who were participants in the Espinoza incident. Toby Jaramillo testified that he saw Raymond, defendant's brother, shoot Espinoza, and that he never saw defendant shoot him. Raymond Alvarez and Daniel DeSoto did not claim that they saw the actual shooting, but both exonerated defendant. Raymond testified that he shot Espinoza 18 times, that he was convicted of manslaughter and served time for his crime, and that defendant was nowhere in the area at the time of the shooting. Under these circumstances, Lankford v. Idaho, supra , does not call for reversal of defendant's death judgment. [56]

*1157 b. Dismissal of the Murder Charge and Staleness

(43) In reliance upon People v. Harvey (1979) 25 Cal.3d 754, 758 [ 159 Cal. Rptr. 696 , 602 P.2d 396 ], defendant asserts that an implied term of his negotiated dismissal of the Espinoza murder charge and arming allegation was that he would suffer no adverse consequences by reason of the facts underlying the dismissed charges. He therefore claims that the admission of the Espinoza homicide evidence violated his right to due process and other fundamental constitutional protections.

As defendant acknowledges, we have squarely rejected the argument that the use of dismissed charges as a circumstance in aggravation violates an implicit term of a plea bargain when used at a capital penalty hearing. ( People v. Frank (1990) 51 Cal.3d 718, 728-729 [ 274 Cal. Rptr. 372 , 798 P.2d 1215 ]; People v. Melton (1988) 44 Cal.3d 713, 755-756 [ 244 Cal. Rptr. 867 , 750 P.2d 741 ] [determining that the general rule of People v. Harvey, supra, 25 Cal.3d at p. 758 , is inapplicable to capital sentencing].) We see no reason to revisit the issue.

Defendant also contends that because his conviction of being an accessory constituted an acquittal of murder, relitigation of the dismissed murder charge during the penalty phase violated his federal due process rights and the state and federal constitutional guarantee against double jeopardy. Defendant is mistaken.

"A bargained conviction or dismissal does not constitute an acquittal under section 190.3. [Citations.]" [57] ( People v. Garceau (1993) 6 Cal.4th 140, 199 [ 24 Cal. Rptr.2d 664 , 862 P.2d 664 ]; People v. Frank, supra, 51 Cal.3d at pp. 728-729; People v. Melton, supra, 44 Cal.3d at pp. 755-756.) Moreover, the constitutional guarantee against double jeopardy "is inapplicable where evidence of prior criminal activity is introduced in a subsequent trial as an aggravating factor for consideration by a penalty phase jury. [Citations.]" ( People v. Garceau, supra, 6 Cal.4th at pp. 199-200, People v. Frank, supra, 51 Cal.3d at p. 729 ; People v. Melton, supra, 44 Cal.3d at p. 756, fn. 17.)

(44) Defendant further contends that, in any event, no evidence of the 1980 homicide should have been admitted under section 190.3 because the charges against him were impermissibly stale at the time of his trial in 1988. He asserts that, due to the passage of time and the loss of all physical *1158 evidence, [58] he could not adequately confront and challenge the accuracy of the other evidence against him in the homicide. He contends that the prosecutor's use of the homicide violated his constitutional rights to due process, confrontation, a fair jury trial and a reliable penalty determination. We reject these contentions.

Under section 190.3, factor (b), a prosecutor may offer evidence in aggravation of criminal violence that has occurred at any time. ( People v. Garceau, supra, 6 Cal.4th at p. 199; People v. Douglas (1990) 50 Cal.3d 468, 529-530 [ 268 Cal. Rptr. 126 , 788 P.2d 640 ]; People v. Balderas (1985) 41 Cal.3d 144, 202 [ 222 Cal. Rptr. 184 , 711 P.2d 480 ].) Even though certain evidence in the Espinoza case had been lost, all otherwise available evidence, including witness statements, was provided to the defense. Moreover, despite the loss of physical evidence, numerous witnesses were able to testify on the matter, many on defendant's behalf. Not only was defendant afforded the opportunity to call his own witnesses, but he was also allowed to conduct full cross-examinations of all adverse witnesses. Accordingly, defendant was not deprived of due process and his constitutional rights were not violated. ( People v. Garceau, supra, 6 Cal.4th at pp. 198-200; People v. Frank, supra, 51 Cal.3d at pp. 728-729.)

c. Characterization of Prior Conviction

Before the start of the penalty phase, the trial court conducted a bifurcated trial on the prior conviction allegations. Over the defense's objection, the court ruled that for purposes of the prosecutor's case in the penalty phase under factor (c) of section 190.3, defendant's prior conviction under section 32 [59] would be characterized as a conviction of accessory to a murder.

(45) Defendant contends this characterization was in error because the record of that prior conviction established only that he had pleaded guilty as an accessory to a felony, without specifying which felony, and there was no evidence indicating the nature of the underlying felony. He emphasizes that, although he and several others had been charged with the murder of Espinoza, the transcript of the change of plea hearing which had been offered to the court demonstrated that his codefendants pleaded guilty only to *1159 manslaughter. Defendant asserts that his plea must be understood in that context.

In response, the Attorney General asserts that the prior conviction was properly characterized because the hearing transcript makes reasonably clear that both defendant and the trial court understood defendant to be pleading guilty of being an accessory to a murder, which was the only felony charged. [60]

Although we are not convinced of the Attorney General's reading of the transcript, we nonetheless find any error harmless. Evidence of the facts underlying the prior conviction was otherwise admissible under section 190.3, factor (b). (See People v. Montiel (1993) 5 Cal.4th 877, 917 [ 21 Cal. Rptr.2d 705 , 855 P.2d 1277 ]; People v. Melton, supra, 44 Cal.3d at p. 764.) Therefore, the jurors were properly presented with evidence and argument as to whether the Espinoza homicide constituted murder, or something less.

Contrary to defendant's assertions, the jurors were not led to believe that the underlying conviction foreclosed them from finding that the Espinoza killing was manslaughter, as opposed to murder. In fact, quite the opposite was true. The court instructed on second degree murder, voluntary manslaughter, and heat of passion and sudden quarrel. These instructions clearly applied to the Espinoza homicide evidence, which was the only evidence of a homicide offered under section 190.3, factor (b). In the face of these instructions, the jurors could not possibly have concluded that they were required to view the killing as a murder. Indeed, any conceivable doubt in the jurors' minds was resolved in defendant's favor by the prosecutor's closing argument explicitly emphasizing to the jurors that they were not foreclosed from determining how the Espinoza killing occurred. [61] In addition, the prosecutor argued that the evidence did not support a conclusion *1160 that the killing was committed under heat of passion or sudden quarrel. The jurors could reasonably infer therefrom that the prior conviction did not control the issue of whether a murder or manslaughter occurred.

In light of the foregoing, we conclude it is not reasonably possible that the characterization of the prior conviction, even if in error, affected the judgment to defendant's detriment. ( People v. Brown (1988) 46 Cal.3d 432, 446-448 [ 250 Cal. Rptr. 604 , 758 P.2d 1135 ].)

3. Jill M. Incident

In October 1976, Jill M. reported to police that she had been raped, sodomized and forced to engage in oral copulation by at least three men at a house in San Leandro. Jill identified defendant as one of her attackers. Although defendant was charged with sexual assault, the charge was dismissed after the preliminary hearing. Prior to this trial, the prosecutor gave notice he would introduce as evidence in aggravation "[t]he incident occurring on or about October 16, 1976, in San Leandro, California, in which the defendant, while acting in concert with others, engaged in the forcible rape, forcible sodomy, and forcible oral copulation of JILL [M.]."

a. Staleness and Loss of Evidence

Shortly before the start of the penalty phase, the defense moved to exclude any evidence of the Jill M. incident, citing the speedy trial and due process provisions of the federal and state Constitutions, as well as the state statute of limitations. The defense argued it was severely disadvantaged in defending against the 12-year-old unadjudicated charge, and was substantially prejudiced by the loss of certain evidence, including, among other things, photos shown to Jill for identification purposes, and vaginal and rectal swabs and smears taken from Jill the morning after the alleged incident. In hearings on the motion, the defense also complained of prejudice due to other unavailable evidence including the failure of defense witness Dr. McGlynn to independently recall the examination of Jill he conducted the morning after the incident. In rejecting these arguments, the trial court determined, inter alia, that the defense was not prejudiced because it could confront both *1161 Jill and San Leandro Police Captain Lewis Pollack, who had investigated the case, regarding Jill's original photographic identification of defendant. [62]

(46) Defendant maintains that the admission of the Jill M. evidence violated his constitutional rights to due process, a speedy trial and a reliable sentencing determination. Relying on Gardner v. Florida (1977) 430 U.S. 349 [ 51 L.Ed.2d 393 , 97 S.Ct. 1197 ], defendant also claims he did not have a fair opportunity to confront and rebut the evidence against him on this incident. In this regard, he contends his ability to defend against the charge was effectively destroyed by the loss of critical physical evidence. We disagree.

First, unlike Gardner v. Florida, supra, 430 U.S. 349 , in which the defendant was sentenced to death due in part to the trial court's reliance on a sentencing report, the contents of which were not revealed to defense counsel, the mere passage of time between defendant's 1976 crimes and defendant's trial did not significantly diminish his ability to challenge the evidence in question. ( People v. Wharton, supra, 53 Cal.3d at p. 601.) Therefore, admission of the evidence did not violate his rights to due process and a reliable sentencing determination. ( People v. Garceau, supra, 6 Cal.4th at pp. 198-199; People v. Frank, supra, 51 Cal.3d at p. 729 .) Nor did it violate his right to a speedy trial. ( People v. Johnson, supra, 3 Cal.4th at p. 1244 [expiration of limitations period does not bar admission of prior unadjudicated criminal activity for purposes of § 190.3, factor (b)]; People v. Heishman

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