# People v. Hardy

> California Supreme Court · March 12, 1992 · 2 Cal. 4th 86

URL: https://www.frixlaw.com/law-library/cases/2618245

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD HARDY and MARK ANTHONY REILLY, Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** March 12, 1992
- **Citations:** 2 Cal. 4th 86; 10 Cal. Rptr. 2d 796; 92 Daily Journal DAR 3841; 825 P.2d 781; 92 Cal. Daily Op. Serv. 2166; 1992 Cal. LEXIS 974
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Lucas, Mosk, Kennard
- **Cited by:** 445 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2618245

## How later opinions describe it (automated extraction)

- finding “no reasonable probability ... [of] actual prejudice” where the trial court permitted a juror, during a view of a crime scene, to examine a door and to have it opened and closed

## Opinion text

2 Cal.4th 86 (1992)
825 P.2d 781
10 Cal. Rptr.2d 796
THE PEOPLE, Plaintiff and Respondent,
v.
JAMES EDWARD HARDY and MARK ANTHONY REILLY, Defendants and Appellants.
Docket No. S004607. Crim. No. 23533.
Supreme Court of California.
March 12, 1992.
*117 COUNSEL
Harvey R. Zall and Fern M. Laethem, State Public Defenders, under appointments by the Supreme Court, Peter R. Silten and Philip M. Brooks, Deputy State Public Defenders, and Maxwell S. Keith, under appointment by the Supreme Court, for Defendants and Appellants.
Michael G. Millman, Kathryn K. Andrews, Jean R. Sternberg, Karen S. Schryver, Neoma D. Kenwood, Andrew S. Love and Suzi Alexander as Amici Curiae on behalf of Defendants and Appellants.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Steve White, Richard B. Iglehart and George Williamson, Chief Assistant Attorneys General, Edward T. Fogel, Jr., Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, Linda C. Johnson, Susan L. Frierson, John R. Gorey and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LUCAS, C.J.
James Edward Hardy and Mark Anthony Reilly were each convicted in Los Angeles County of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise stated) resulting from the stabbing death of Nancy Morgan and her eight-year-old son, Mitchell. Both defendants were also convicted of one count of conspiracy to commit murder to collect life insurance proceeds. (§ 182.) In addition, the jury sustained six of eight charged special-circumstance allegations for each defendant, finding that each murder was committed for financial gain, that defendants committed a multiple murder, and that they killed while lying in wait. (§ 190.2, subds. (a)(1), (3), & (15).) Defendant Reilly was also found guilty of soliciting the murders. (§ 653f, subd. (b).) After the penalty phase of the trial, the jury set the penalty at death for both defendants. This appeal is automatic. (§ 1239, subd. (b).) [1]
For the reasons stated below, we conclude one multiple-murder special-circumstance finding must be set aside for each defendant but the judgment as to each defendant should otherwise be affirmed in its entirety.
*118 FACTS
Guilt Phase
Jack Parsons lived in Van Nuys, across the street from Cliff and Nancy Morgan. On May 21, 1981, he received an early morning telephone call from an operator asking him to call Cliff Morgan in Carson City, Nevada; Morgan had recently moved to Nevada for business purposes. Parsons called Morgan, who expressed concern because he had been telephoning his wife since seven in the morning but no one answered. Morgan asked Parsons to check his house to see if anything was wrong. Parsons did so but saw nothing amiss, although no one responded to his pounding on the door. He reported this to Morgan, who then instructed Parsons to lift open a certain back window, reach inside, and unlock the back door, and check the inside of the house. Parsons did so while Morgan waited on the line. When Parsons returned, he told Morgan, "You got to hang up right now. I got to call the police." Morgan hung up and immediately began driving back to his Van Nuys home.
Summoned by Parsons, the police arrived at the Morgan home and discovered the bodies of Morgan's wife, Nancy, and their eight-year-old son, Mitchell. Police determined that the house had been entered through the front door on which the security chain lock had been cut with bolt cutters. (As an investigation aid, police did not publicly reveal this latter fact.) In addition, it appeared the light bulb in the porch light had been rotated to break the connection.
Later tests showed that Nancy Morgan had been stabbed 45 times with a stiletto-type knife about 4 hours before Parsons discovered the body. Experts placed the time of death around 3 or 4 a.m. Mitchell Morgan had been stabbed 21 times, probably with the same knife. Because Nancy Morgan was not cut below the pelvis, a police expert opined that an accomplice probably held her legs while the actual killer stabbed her. Also, because the second victim would almost certainly have run away while the other was being killed, the same expert believed that at least two people committed the crime.
Cliff Morgan arrived home about six hours after his conversation with Jack Parsons. Although distraught, he managed to inform police that several guns had been stolen, as well as a coin collection that had been on top of a cabinet. (Investigating officers, however, noticed that the cabinet was covered with a heavy layer of dust and there was no indication that any type of *119 container had been on the cabinet recently.) Morgan later told police he had discovered a diamond ring was also missing.
The following day, police received a call from James Sportsman. Mr. Sportsman stated that his 18-year-old daughter, Debbie, was dating defendant Mark Reilly and that Reilly was a frequent dinner guest in their home. Mr. Sportsman recalled remarks Reilly made in April 1981 to the effect that he had a friend named Morgan who wanted to have his wife killed in order to collect on some insurance policies. Mrs. Sportsman, Debbie's mother, recalled that Reilly said he would receive $25,000 if he could find a "hit man" to do the job. At the time, Mrs. Sportsman thought it was "just talk."
Police investigation, however, revealed a complex conspiracy between Reilly, defendant James Hardy, and codefendant Cliff Morgan to kill the victims in order to obtain insurance benefits. The conspiracy began when Morgan met Reilly while both were studying to become auto salesmen. They became friends and were eventually assigned to the same auto dealership as sales trainees. Reilly would often spend time at Morgan's home during this period.
In January 1981, Morgan began selling life insurance for Equitable Life Insurance Company at the suggestion of his wife, Nancy, who was a secretary there. Shortly thereafter, Morgan took out life insurance policies on himself, Nancy, and his son Mitchell. An expert testified that the policies were an unwise investment because the premiums would be more than $10,000 annually, or more than 25 percent of Morgan's projected annual gross income. Deducting his commission, however, the premium for the first year would be only $5,261, and only a fraction of that amount was due before June 1, 1981. Under the policies, Cliff Morgan would receive more than $850,000 should both Nancy and Mitchell Morgan die.
Debbie Sportsman met Reilly in April 1981 and became intimate with him. She testified that Reilly told her about Morgan's plan to kill his wife and child. Reilly said he agreed to find Morgan someone to do the actual killing. In return, Morgan promised to open a bar for Reilly to manage, and allow Reilly to live in Morgan's home. Reilly told Debbie he knew a kick-boxer who knew someone in the Mafia who would do the killing. Reilly also told Debbie he gave some money and a ring (supplied by Morgan) to the kick-boxer who was, in turn, to give the money to the Mafia hit man. The *120 plan went awry when the hired killer was himself killed and the money stolen. [2]
Later, Reilly told Debbie he tried to convince an acquaintance, Calvin Boyd, to do the killing. Reilly told Debbie that Boyd asked for money up front but Reilly said Morgan had no more cash after the incident with the kick-boxer. After Debbie learned of the two killings, she assumed Boyd was the killer but Reilly told her it was not Boyd and that it was better for her if she did not know the real killer's identity. Boyd learned Reilly had given Debbie the impression that Boyd was the killer and warned Reilly to stop spreading such rumors.
In the days following the crime, Boyd pressed Reilly to reveal the name of the actual killer. Reilly eventually told him that he and Hardy killed the victims, but asked Boyd not to tell Hardy that Boyd knew. Later, Hardy confronted Boyd and said he had been asking too many questions.
According to Debbie Sportsman, Reilly began associating with Hardy around May 10, 1981. She testified that the two men had many private conversations during this period and often drank and took drugs together. On the evening of May 20, 1981, the night of the killings, Debbie met with Hardy and Reilly at the latter's apartment. Reilly spoke with Morgan on the telephone and asked him if he wanted to go through with the killing. Morgan, who was in Carson City, answered that he did. When Reilly asked what to do with Mitchell, Morgan said that if it was necessary, his son must also be killed. Reilly told Debbie he did not want her around after 10 o'clock that night.
When Debbie read about the murders in the newspaper the next day, she became hysterical and went to Reilly's apartment. She found him there with Hardy; Reilly was calm and both were laughing and drinking. Reilly told her to behave normally so people would not suspect something was amiss. Without revealing the identity of his crime partner, Reilly admitted to her that he had gone with another person to Morgan's home, unlocked the front *121 door, cut the security chain lock with bolt cutters, and entered the house, his partner apparently entering the bedroom. Reilly said that when he heard Nancy Morgan pleading for her life, he went to wait outside. His partner, the actual killer, eventually emerged and told him Nancy "just wouldn't die." Reilly told Debbie that "you just don't know how it feels" to stab someone. He encouraged Debbie to speak to Hardy and another friend, Colette Mitchell, in order to coordinate their alibi stories. He then gave her a few $100 bills that he had received from Morgan.
Debbie Sportsman went to work the next day but was too upset to work and left before noon. She went to the home of her friend, Kim H. Mrs. Sportsman called Debbie there and asked her to come home. On arriving home, Debbie found Detectives Jamieson and Bobbitt waiting for her. They questioned her about the crime and she told them about Morgan's desire to kill his wife but did not reveal Reilly's involvement. After the interview, she returned to Kim H.'s apartment. Reilly called her there and she told him of the police inquiry. He became upset and they went to a local park to talk. When she revealed that she told the police about Morgan, Reilly became livid, exclaiming, "Debbie, if he goes — you don't understand. If Cliff goes down, I go down." He then endeavored to learn everything Debbie had revealed so as to conform his story to hers. He also mentioned that he would speak to Hardy and Colette Mitchell to coordinate their alibi stories.
Reilly was subsequently arrested but later released. He and Debbie again went to a park to talk. He was drinking from a bottle of scotch and crying. He admitted that he had used their friend Mike Mitchell's car to drive to the Morgan home and that he used bolt cutters to cut the chain. He said he stayed in the hallway while his accomplice entered the bedroom and stabbed Nancy Morgan with a fish knife. Reilly said he could hear Nancy crying and saying, "Please don't kill me." He became ill and went outside to wait. When his accomplice joined him, the accomplice described how hard it was to kill the victim. Reilly said he became sick again. When Debbie asked about the slaying of Mitchell Morgan, Reilly became defensive but admitted the boy was killed first.
Later, Reilly told Debbie that Morgan called and said there would be a delay in payment because the insurance company was investigating the killings. Reilly said his crime partner understood about the delay.
After these revelations, Debbie Sportsman's feelings for Reilly changed and she eventually went to police and told them everything she knew. Reilly was rearrested and the booking officer noticed what appeared to be a bloodstain on the tip of Reilly's shoe. Reilly said it was blood that had *122 leaked from a package of meat he had purchased. Later tests showed the stain was human blood.
Much of Debbie Sportsman's testimony was corroborated by other witnesses. For example, Kim H. testified she knew Reilly, Hardy, and many of their friends, including Mike Mitchell, whom she had dated. She said she once heard Morgan say he wanted to have his wife killed for the insurance money and also testified Debbie had told her Reilly admitted the killings to her.
Mike Mitchell (apparently no relation to Colette Mitchell) testified he had known Reilly for 13 years. Prior to the killings they were roommates in an apartment on Vose Street. Reilly told him about a coworker at the auto dealership who wanted to kill his wife for the insurance money. Reilly told him he had given some coins and a ring to a kick-boxer to do the killing but the deal fell through. One day, Reilly pointed out Hardy to Mike Mitchell and said Hardy would do the killing. Hardy lived next door to Reilly and Mike Mitchell.
On the night of May 20, 1981, Mike Mitchell and his girlfriend Sharon Morgan (apparently no relation to codefendant Cliff Morgan) went to a baseball game. They returned to the Vose Street apartment around 11 p.m. and went to sleep. When they retired for the night, neither Hardy nor Reilly was in the apartment. When Mitchell awoke about an hour later, however, both defendants were present, drinking and smoking with Colette Mitchell and possibly another friend, Steve Rice, who lived next door to the Reilly/Mitchell apartment. Mike Mitchell did not see Hardy and Reilly again until the next day, although sometime in the middle of the night he heard the shower running and two male voices. The next morning, he found some wet towels in the bathroom, indicating someone had taken a shower that night. Reilly told Mike Mitchell that if anyone should ask about the night of the murders, he should say that Reilly and Hardy were in the apartment all night, having a party with Colette.
Colette Mitchell testified under a grant of immunity. She met Hardy in early 1981 and began living with him and her brother, Ron Leahy. She understood from Hardy that he was going to participate in some sort of criminal endeavor, that he would steal something to make it look like a robbery, and that someone would collect some insurance money as a result. Hardy said he would use bolt cutters to gain entry to the house and that the crime must be committed before June 1, 1981, because the insurance policy would expire.
On the night of May 20, 1981, Colette drank beer and snorted cocaine with Reilly, Hardy, and Steve Rice. She eventually fell asleep or passed out *123 in Rice's apartment and did not awaken until 11 o'clock the next morning. It was only then that Colette learned of the murders and that Hardy expected her to provide an alibi for him for the previous night. The two discussed the matter of an alibi several times. Hardy denied committing the murders but later said he had been to the Morgan home on the night they occurred. Reilly told her that "the boy" (presumably Mitchell Morgan) was not supposed to be killed but he was in his mother's bed so he was killed. When Colette asked Hardy about the boy, he confirmed what Reilly had said.
While in jail, Hardy told Colette to have his brother, John Hardy, retrieve an M-1 carbine rifle from Steve Rice's apartment and dispose of it. Hardy told Colette that he obtained the rifle from Reilly and that because the rifle was stolen, they should neither show it to anyone nor handle it with their bare hands. (Cliff Morgan told police that an M-1 carbine rifle was one of the items stolen from his house.) Later, on hearing the police had discovered a footprint at the Morgan home, Hardy asked Colette to retrieve and destroy a certain pair of boots in his closet. She complied, throwing the boots in a garbage can.
Either Reilly or Hardy told Colette that while they were in jail awaiting trial, their insurance money was collecting interest. Hardy said Cliff Morgan was not worried because his money was earning 12 3/4 percent interest while he was in jail.
At Hardy's preliminary examination, Colette Mitchell testified that Hardy was with her the entire night and morning of May 20-21, 1981. This testimony was consistent with Hardy's statement to police. At trial, however, she admitted having lied at the earlier hearing in order to protect Hardy, whom she loved. She testified at trial that she no longer loved him. She admitted that she fell asleep or passed out around 2 a.m. on the night in question and thus did not know if Hardy was with her the entire night. Reilly later admitted to her, however, that he had left the apartment that night after she had passed out.
Although Hardy told Colette Mitchell that he was innocent, he told her inconsistent stories, often admitting several incriminating facts to her. For example, he once told her that he went to the Morgan home on the night in question and knew the victims were alive because he could hear them snoring. Another time, he told her that the victims were already dead when he arrived. He also reported that Reilly was in control of the crime. Once, when Colette spoke of the crime and assumed there was more than one killer, Hardy exclaimed, "Where do they get `they'?" When Colette replied that she had heard there were two people involved, Hardy retorted, "No, I know for a fact it was one."
*124 Ron Leahy, Colette Mitchell's brother, testified he lived with Colette and Hardy and met Reilly through them. Leahy visited Reilly in jail about 60 times, usually accompanying Colette while she spoke with Hardy. Although Reilly told Leahy several conflicting stories about the crime, Reilly admitted to him that he knew who killed the victims, that he participated in the crime by setting it up, and that he was supposed to make it look like a robbery. Reilly also said he had been promised $30,000 for his participation but was going to ask Morgan for twice that amount because he had been arrested and harassed.
Sean Fitzgerald was Reilly's friend. He testified that Reilly came to him in April 1981 and asked whether he, or anyone he knew, would be willing to kill someone for money. Reilly said he had met a man where he worked who wanted to kill his wife for the insurance money. Reilly said the hired killer would receive $30,000. Fitzgerald thought Reilly was crazy but referred him to Marc Costello, a coworker he believed had connections to the Mafia.
About six weeks later, Fitzgerald heard about the two slayings. Shortly thereafter, Reilly arrived at his home unannounced, appearing very nervous. Reilly admitted he was involved in the murders, told Fitzgerald where the Morgan home was located, and expressed concern about what he would tell police if questioned.
Around June 11, 1981, Reilly again unexpectedly appeared at Fitzgerald's home. He asked Fitzgerald to accompany him to Tip's Restaurant, where he said he would obtain some money from "the husband." The two men met Cliff Morgan at the restaurant and sat with him at the bar. Reilly and Morgan went to the restroom together and when they returned, Fitzgerald left with Reilly. As Reilly drove home he said, "Look at this" and produced a wad of money. Fitzgerald counted it; it was $2,500.
Sometime later, Fitzgerald joined Reilly at the Red Onion restaurant. Reilly said that it was difficult to kill the woman, that she had to be stabbed several times, and that the boy who was killed was trying to protect his mother. Reilly demonstrated how his accomplice grabbed the boy, kissed him on the forehead, said, "I'm sorry" and then killed him. Fitzgerald asked Reilly whether he was at the Morgan home when the boy was killed. Reilly first replied in the negative but later admitted he was there but stayed outside the house.
Harley Laughlin was president of Laughlin Truck Lines in Carson City, Nevada. He testified that on May 5, 1981, he hired Cliff Morgan as his general sales manager. Morgan asked Laughlin whether he would be willing *125 to consider him as a partner or investor in the firm. Laughlin thought this was odd as Morgan had previously said he had no money. Morgan replied that he would soon acquire a lot of money. On the afternoon of May 20, 1981, Morgan said he was feeling ill and would go home early. Laughlin observed that Morgan appeared "kind of green and clammy and sweaty."
Jack Parsons, the neighbor who discovered the bodies, testified that he chatted with Cliff Morgan about three weeks before the killings. When the conversation turned to the death of Parsons's wife, Morgan commented that when his own wife died, all his problems would be solved. When Parsons said Nancy would probably outlive Morgan, Morgan replied, "I've got a feeling that she is going to go before I do."
Judy Yockel, Nancy Morgan's sister, testified that at the time Cliff and Nancy married, Cliff often claimed he would retire at age 55. When she asked him how he could afford to retire early as he had not made any provision for such a plan, he simply replied that when the time came, provisions would be made. At Nancy Morgan's funeral, Cliff mentioned to Nancy's aunt that he would "be worth three-quarters of a million dollars and ... [would not] have to work another day in [his] life." He also mentioned the amount of the anticipated insurance benefits to his mother-in-law.
Margaret Maddux was one of Nancy Morgan's best friends and spoke with her around Easter 1981. Nancy told Maddux that she and Cliff were having marital problems and were talking about getting a divorce. In April 1981, Maddux's family joined the Morgans on a camping trip. In front of everyone, Cliff Morgan remarked in a joking manner that due to an insurance policy, Nancy was worth more to him dead than alive. In a more private moment, Morgan asked whether Maddux ever had a fantasy about killing her husband. When she replied "no," he admitted that he had fantasized about killing Nancy. Then, on May 10, 1981, just 10 days before the killing, Nancy told Maddux that she was "really thinking of getting divorced" because Morgan had put their Van Nuys home up for sale without her knowledge.
Cliff Morgan was 56 years old at the time of trial and testified in his own defense. He denied mentioning anything about killing his wife for the insurance proceeds to Debbie Sportsman or Kim H. He stated he loved his wife and son. He admitted knowing Reilly but denied asking him to arrange the murders. He also denied giving Reilly his diamond ring as partial payment for the murder, claiming the ring was his most prized possession. He admitted Reilly introduced him to Marc Costello but denied helping Costello plan the killing. He also admitted meeting Reilly and Fitzgerald at Tip's Restaurant on June 11, 1981, but said he gave Reilly only $250 in cash, *126 not the $2,500 that Fitzgerald described. Morgan said he gave Reilly the money because Reilly asked him for it to make a car payment. He denied speaking to Margaret Maddux about killing Nancy.
Morgan testified that while both he and Reilly were in pretrial detention, Reilly admitted he attempted to find someone to kill Nancy, did not succeed, and eventually backed out of the endeavor. As far as Cliff Morgan knew, Hardy had nothing to do with the killings. He denied participating in a conspiracy to kill his wife and son.
Several witnesses testified in support of Cliff Morgan, including friends, neighbors, his ex-wife, and his other children. All, to varying degrees, described the apparently loving relationship between Cliff and Nancy Morgan, and between Cliff and his son, Mitchell.
Reilly produced four witnesses who testified that he was not a violent person. One defense expert witness stated that all that could be said with scientific confidence about the time of death was that the victims died sometime within the 18-hour period ending at 6 a.m. on May 21, 1981. Sharon Morgan testified that she had been to a baseball game on the night of May 20 with her boyfriend, Mike Mitchell. They returned to the Mitchell/Reilly apartment on Vose Street and she went to bed around 11:45 that night. She had trouble falling asleep because there was a lot of noise in the apartment. She recognized Reilly's voice in the apartment. When she took Mike Mitchell's car to work the next morning, it was parked in the same place they had left it the night before and there was no indication it had been used during the night.
Reilly did not testify. Hardy rested on the state of the evidence and did not present any witnesses at the guilt phase of the trial.
Penalty Phase
Three photographs depicting the two victims as they appeared when police discovered the bodies were admitted at the penalty phase over a defense objection. These photographs were not admitted at the guilt phase of the trial.
On August 6, 1980, Officers Hansen and Wicks responded to a report of a domestic disturbance. They found Hardy assuming a military marching pose holding a rifle. He appeared unaware of his surroundings. Although he complied with Hansen's request to put the rifle down, Hardy refused to move away from it. At Hansen's request, Hardy also removed two knives from his *127 waistband and placed them next to the rifle. Hardy then produced a nunchaku [3] and assumed a fighting stance. Although Officer Hansen directed Hardy to place the nunchaku on the ground, Hardy remained in a fighting stance for five or ten minutes. He eventually agreed to put down his nunchaku if Officer Wicks put down his service revolver. When Wicks complied, Hardy surrendered peacefully and explained he had just been in a family quarrel. The rifle was not loaded. Hardy later pleaded guilty to misdemeanor possession of nunchakus and disturbing the peace; he was placed on probation.
Carolyn Hardy, Hardy's mother, testified that she telephoned police after Hardy punched his brother John and pulled a gold chain off John's neck. When Hardy realized his mother had called the police, he kicked down her door. Carolyn Hardy told police she was concerned that Hardy had ingested phencyclidine, otherwise known as PCP or angel dust. (See Health & Saf. Code, § 11383.)
Carolyn Hardy said the nunchaku Hardy brandished belonged to his other brother, Robert. She explained that Robert had told his family he intended to commit suicide but defendant Hardy did not believe him. When Robert carried out his threat, defendant blamed himself for Robert's death. The day after Robert's death, defendant threw himself off a mountain, broke both his legs, and was bedridden for six months. Carolyn Hardy believed defendant needed psychiatric help.
Carolyn Hardy testified that defendant Hardy had participated in a program called Outward Bound, which involved camping and hiking in Colorado. He was chosen for the program because of his high scholastic potential. Defendant Hardy presented no other affirmative mitigating evidence at the penalty phase.
Father Bonaventure Jezierski testified that he knew Reilly in Buffalo, New York, when the latter served as an altar boy. Father Jezierski stated that Reilly was well-behaved and well-liked as a child, that he was raised by his mother alone, and that she always brought Reilly to Mass on time, neatly dressed.
Joseph Dotterweich testified that he was a childhood friend of Reilly in Buffalo and that the two of them shared many interests. He never knew *128 Reilly to be involved with any criminal activity and although he saw Reilly drink beer, he never saw him take drugs. In 1978, the pair moved from Buffalo to Los Angeles and Reilly enrolled at Los Angeles City College. Dotterweich returned to New York and the two corresponded. When Dotterweich was involved in a serious car accident, Reilly was very supportive. Dotterweich returned to Los Angeles for a visit in 1981 and Reilly was apparently the same caring, affable person Dotterweich had always known. Reilly was working and said he intended to return to school.
Although he was tried jointly with Hardy and Reilly, Cliff Morgan's penalty phase trial was severed from the other two defendants when it was discovered he suffered from incurable bone cancer. He died of natural causes before his penalty trial could be held.
DISCUSSION
Jury Issues
1. Allocation of Peremptory Challenges
Prior to jury selection, the trial court ruled that, pursuant to former sections 1070 and 1070.5, [4] Reilly, Hardy, and Cliff Morgan would have 26 peremptory challenges among them which must be exercised jointly. [5] In addition, each would have five peremptory challenges that could be exercised individually. Also pursuant to statute, the court decided the prosecutor would have 41 total peremptory challenges (26 plus 15) at his disposal. All three defense attorneys eventually accepted the jury without exhausting their allotted challenges, explaining that although they were not satisfied with the jury composition, they decided that it was unwise to make further changes because the prosecutor had so many challenges at his disposal that he would essentially choose the jury himself after the defense had exhausted their *129 challenges. All three defense attorneys complained that the system was unfairly weighted in the prosecutor's favor.
(1) Reilly argues that the statutory allocation of peremptory challenges violated his constitutional rights to due process, equal protection, and fundamental fairness. He relies almost entirely on the arguments raised on appeal by the defendant in People v. Ainsworth (1988) 45 Cal.3d 984 [ 248 Cal. Rptr. 568 , 755 P.2d 1017 ], and appends a copy of a portion of the defendant's opening brief in that case. We rejected these contentions in Ainsworth and have declined to reconsider the matter in subsequent cases. ( People v. Webster (1991) 54 Cal.3d 411, 439 [ 285 Cal. Rptr. 31 , 814 P.2d 1273 ]; People v. Johnson (1989) 47 Cal.3d 1194, 1222-1223 [ 255 Cal. Rptr. 569 , 767 P.2d 1047 ].)
Reilly claims Ainsworth, supra, 45 Cal.3d 984 , is distinguishable because only two defendants were jointly tried in that case, implying that any possible unfairness was magnified in his case because it involved three defendants. Thus, the prosecutor here had not 36 but 41 total peremptory challenges. We disagree and find no significance in the sheer number of defendants jointly tried. (See Webster, supra, 54 Cal.3d at p. 439 [applying Ainsworth in a case involving four defendants].)
Reilly also argues it is fundamentally unfair to grant him only 5 challenges while the prosecutor has 41 challenges. We disagree with the premise because defendant overlooks the fact that he also possessed 26 additional challenges; the mere fact those challenges must be jointly exercised does not necessarily mean they were not reasonably available to him.
2. Witherspoon/Witt Error
(2a) After extensive voir dire, the prosecutor successfully challenged prospective juror Bracamonte for cause. Defendants contend that in granting the challenge, the trial court erred under the principles set forth in Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ]. (3) Wainwright v. Witt (1985) 469 U.S. 412 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ] ( Witt ), however, supersedes Witherspoon and requires a trial court to determine "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" ( Witt, supra, at p. 424 [83 L.Ed.2d at pp. 851-852].) "Under Witt , therefore, our duty is to `examine the context surrounding [the juror's] exclusion to determine whether the trial court's decision that [the juror's] beliefs would "substantially impair the performance of [the juror's] duties ..." was fairly supported by the record.'" ( People v. Miranda (1987) 44 *130 Cal.3d 57, 94 [ 241 Cal. Rptr. 594 , 744 P.2d 1127 ], quoting Darden v. Wainwright (1986) 477 U.S. 168, 176 [ 91 L.Ed.2d 144, 154 , 106 S.Ct. 2426 ].) [6] "[I]f the prospective juror's responses are equivocal ... or conflicting, the trial court's determination of that juror's state of mind is binding [on an appellate court]." ( People v. Cooper (1991) 53 Cal.3d 771, 809 [ 281 Cal. Rptr. 90 , 809 P.2d 865 ].)
(2b) We find prospective juror Bracamonte's answers on voir dire demonstrated his 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." ( Witt, supra, 469 U.S. at p. 424 [83 L.Ed.2d at pp. 851-852].) He several times expressed his opposition to the death penalty and three times stated his views would prevent him from being fair and impartial at the guilt phase. Although he was confused on occasion and rehabilitated by defense counsel to some extent, after much questioning and discussion he unequivocally stated he would not vote for the death penalty regardless of the facts presented. In short, we find no error.
3. Restriction of Voir Dire
(4) Defendants argue the trial court improperly restricted their ability to question jurors during voir dire. The trial court decided to ask each prospective juror a set of four standard questions based on Witherspoon v. Illinois, supra, 391 U.S. 510 ( Witherspoon ). Defense counsel moved to add a fifth question (or modify the fourth question) to include the fact that one of the murder victims was an eight-year-old child. The prosecutor stated he had no objection, provided he would be able to also ask whether it would affect the prospective juror's decision if one of the accused did not actually participate in the killing (presumably because it was the prosecutor's theory that Cliff Morgan did not physically participate in the murders). The trial judge rejected both suggestions and said that both sides could ask individual questions during the general voir dire.
We find no error. Both sides had an opportunity to question the prospective jurors on particular subjects during the general voir dire. Although defendants claim their ability to excuse jurors was limited by the reduced number of peremptory challenges allocated to them by statute, that factor did not limit their ability to excuse jurors for cause. In any event, as we explained ante, at pages 128-129, the trial court's decision requiring defendants to jointly exercise 26 peremptory challenges was not error. Finding no *131 error, we decline to address defendants' claim that they suffered prejudice from the trial court's refusal to expand the Witherspoon voir dire proceedings.
4. Failure to Reopen Witherspoon Voir Dire
(5) Following completion of the Witherspoon voir dire, prospective juror Brown sent a letter to the court, explaining that from the tenor of the general voir dire of other prospective jurors, it seemed unlikely to him that defense counsel would permit him to remain on the jury. Brown explained in the letter that his female cousin had been murdered in San Francisco and the killer never found. In addition, his nephew was slain in his presence at a party. The nephew shot and killed one of the assailants but the other man was never apprehended. Brown's aunt and uncle had also been murdered during a residential burglary. There too, the killers were never found. Finally, Brown was talking to a man in a bar when the man was murdered. Brown heard that the killer was found and sentenced to life imprisonment.
The parties went in chambers to discuss the letter. Both sides asked Brown several questions about how these incidents would affect his ability to remain impartial. Despite these incidents, Brown consistently affirmed his ability to remain impartial, to obey the court's instructions, and to vote for a verdict based on the evidence presented in court. Stone, counsel for Cliff Morgan, and Demby, Hardy's defense counsel, moved to reopen the Witherspoon voir dire for Brown; the court did not immediately rule on the motion, instead remarking, "Well, we are outside the presence of the other jurors."
After some additional questions, Richard Lasting, Reilly's trial counsel, asked Brown whether he would favor "one punishment over the other in a case where someone is convicted of multiple stabbings of two people." The prosecutor objected, saying, "That's Witherspoon again. I think we already covered that." The judge replied, "All right. He [Brown] has indicated he is going to be fair in the penalty phase." In response to additional questions, Brown reiterated that he did not favor one penalty over another, and that he could base his decision on the evidence presented and instructions given. He was later subjected to a searching inquiry in open court, including questions about the five killings that touched his life. None of the three defense lawyers challenged Brown for cause or with a peremptory challenge.
As this record makes clear, the trial court did not violate defendants' constitutional rights by refusing to reopen the Witherspoon voir dire. Contrary to defendants' arguments, the trial judge neither reserved the voir dire for himself nor failed to permit follow-up questions to ambiguous queries. *132 (See People v. Bittaker (1989) 48 Cal.3d 1046, 1083-1084 [ 259 Cal. Rptr. 630 , 774 P.2d 659 ].) Brown was subjected to an extensive voir dire by the trial judge, the prosecutor, and defense counsel. Further, although defendants complain that they would not have passed the jury had they had more peremptory challenges at their disposal, we have rejected the basis of that contention, ante, at pages 128-129.
Guilt Phase Issues
5. Counsel's Alleged Conflict of Interest
Hardy was represented at his preliminary examination by Bardsley, a deputy public defender. Bardsley continued his representation until shortly after Hardy's arraignment. At that time, another public defender, Demby, was substituted as Hardy's trial attorney. During the pretrial proceedings in this case, Hardy complained that he was being denied his speedy trial rights because Demby sought numerous continuances in an effort to prepare for trial. Hardy apparently believed that Bardsley was more familiar with the case and would not have needed as many continuances.
The trial court treated Hardy's complaint as a Marsden motion ( People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal. Rptr. 156 , 465 P.2d 44 ], and appointed independent counsel to investigate the matter. Bermann, a private attorney, moved on behalf of Hardy to dismiss the case on speedy trial grounds. The trial court denied the motion on February 23, 1983.
On March 7, Hardy filed a pro se declaration of conflict of interest and asked for appointment of another attorney. The declaration stated that Demby "is failing to put [certain facts] before the court" and that Demby "failed to investigate [relevant] evidence." The trial court held a Marsden hearing and then denied the motion.
On March 14, the parties were in the process of selecting jurors. The trial court at this time became aware that Hardy had filed a pro se complaint in federal court alleging negligent legal representation and seeking $5 million in compensation. Because the lawsuit named Demby as one of the defendants, Hardy moved pro se to have him replaced due to an alleged conflict of interest. (Also named in the suit were Bardsley, Wilbur Littlefield, the Los Angeles County Public Defender, and the entire Los Angeles County Office of the Public Defender.) Demby asked the trial court to defer action on the motion until he read the federal complaint and conferred with his superiors. The trial court agreed and jury selection continued.
On March 17, the following discussion occurred in open court:
*133 "MR. DEMBY: I have discussed with my office the matter of the lawsuit of Mr. Hardy. I have discussed it with Mr. Littlefield and with Mr. Bardsley. They feel that the facts of the lawsuit would not interfere with my diligent defense of Mr. Hardy. I also have that feeling and I believe it would be up to the court to make any ruling.
"THE COURT: I don't know if I have to make a ruling. I mean there is a civil suit pending, I don't think there is any action to be taken. [¶] You will be adequately represented, I assume. Mr. Hardy has filed this lawsuit. That is his prerogative.
"MR. DEMBY: I do not believe that the lawsuit will interfere with my representation of Mr. Hardy.
"THE COURT: Do you want to say anything, Mr. Hardy?
"DEFENDANT HARDY: I feel that it's in direct conflict with Mr. Demby and in direct conflict with the Public Defender's Office having this action against them.
"THE COURT: I understand that, sir. No. I think based on Mr. Demby's reputation, also his statement, I think he is going to afford you an adequate defense and your due process rights will not be impinged."
During the preparation of the record for this appeal, the parties stipulated that the trial court denied the motion to relieve Demby without having read the federal complaint. [7] (6a) Hardy now claims that he is entitled to reversal of his convictions because he was forced to go to trial with an attorney burdened by a conflict of interest.
Before addressing that issue, we first discuss motions filed with this court by both Hardy and the People, urging that we take judicial notice of the court file of the federal lawsuit.
a. Judicial Notice
(7a) Both respondent and Hardy moved this court to take judicial notice of the contents of the court file in Hardy's lawsuit. In addition, Hardy also asks that we notice the contents of the court file in the appeal of that case as *134 well as the court file in another lawsuit he filed and its accompanying appeal to the Ninth Circuit Court of Appeals. Although we granted both motions prior to oral argument, we deem it instructive to explain our reasons at this time.
Evidence Code section 452 states in pertinent part: "Judicial notice may be taken of the following matters ... (d) Records of... (2) any court of record of the United States." Evidence Code section 459, subdivision (a), permits but does not require a reviewing court to take judicial notice of matters specified in Evidence Code section 452. Although judicial notice is thus permissible in this case, several courts have cautioned against judicially noticing matters that were not before the trial court. (8) "[A]s a general rule the [appellate] court should not take... [judicial] notice if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance." ( People v. Preslie (1977) 70 Cal. App.3d 486, 493 [ 138 Cal. Rptr. 828 ]; People v. Meza (1984) 162 Cal. App.3d 25, 33 [ 208 Cal. Rptr. 576 ] [following Preslie ]; DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal. App.3d 858, 863 [ 206 Cal. Rptr. 28 ] [same]; People v. Hamilton (1986) 191 Cal. App.3d Supp. 13, 21-22 [ 236 Cal. Rptr. 894 ] [following Preslie ].) Such a rule prevents the unfairness that would flow from permitting one side to press an issue or theory on appeal that was not raised below. ( Hamilton, supra, at p. Supp. 22.)
(7b) Despite these authorities, several considerations led us to conclude that judicial notice was appropriate in this case. First, and foremost, both respondent and defendant Hardy ask that we judicially notice the federal lawsuit. Moreover, neither side opposes the other's motion. There should thus be no unfairness to either side.
Second, Evidence Code section 459, subdivision (d), provides certain procedural safeguards when a reviewing court takes judicial notice. [8] By providing for special rules for situations in which a party seeks judicial notice of information "not received in open court or not included in the record of the action" (Evid. Code, § 459, subd. (d)), the Evidence Code clearly contemplates that, at least in some situations, a reviewing court will grant judicial notice even when the information was not presented to the trial court. (See People v. Belcher (1974) 11 Cal.3d 91, 94, fn. 2 [ 113 Cal. Rptr. 1 , 520 P.2d 385 ] [granting judicial notice of matters not made part of the record at trial].)
*135 Third, the facts are not reasonably open to dispute; both motions for judicial notice append photocopies of certified copies of the pertinent court files.
Thus, although the general rule cautions against granting judicial notice of matters not presented to the trial court, other considerations present in this case suggested a contrary conclusion. Under these circumstances, judicial notice was appropriate despite the fact that the documents noticed were not presented to the trial court.
b. Conflict of Interest
(9) We recently explained the general principles governing this issue in People v. Jones (1991) 53 Cal.3d 1115 [ 282 Cal. Rptr. 465 , 811 P.2d 757 ]. "Under the federal and state Constitutions, a criminal defendant has the right to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) These constitutional guarantees entitle a defendant `not to some bare assistance but rather to effective assistance.' ( People v. Ledesma (1987) 43 Cal.3d 171, 215 [ 233 Cal. Rptr. 404 , 729 P.2d 839 ], italics in original.) That entitlement includes the right to representation that is free from conflicts of interest. ( Wood v. Georgia (1981) 450 U.S. 261, 271 [ 67 L.Ed.2d 220, 230 , 101 S.Ct. 1097 ]; People v. Bonin (1989) 47 Cal.3d 808, 834 [ 254 Cal. Rptr. 298 , 765 P.2d 460 ].) It applies to a defendant who retains his own counsel as well as to a defendant who is represented by appointed counsel. ( People v. Bonin, supra, at p. 834 ; Cuyler v. Sullivan (1980) 446 U.S. 335, 344-345 [ 64 L.Ed.2d 333, 344 , 100 S.Ct. 1708 ].)
"[W]hen counsel is burdened by an actual conflict of interest, prejudice is presumed; the presumption arises, however, `only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."' ( Strickland v. Washington (1983) 466 U.S. 668, 692 [ 80 L.Ed.2d 674, 696 , 104 S.Ct. 2052 ], citing Cuyler v. Sullivan, supra, 446 U.S. at p. 348 .)
"Conflicts of interest may arise in various factual settings. Broadly, they `embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests. ' ( People v. Bonin, supra, 47 Cal.3d at p. 835.)" ( Jones, supra, 53 Cal.3d at pp. 1133-1134, last italics added.)
Although "most conflicts of interest seen in criminal litigation arise out of a lawyer's dual representation of co-defendants, the constitutional principle is not narrowly confined to instances of that type." ( United States v. Hurt *136 (D.C. Cir.1976) 177 App.D.C. 15 [ 543 F.2d 162, 166 ], fn. omitted.) Thus, a conflict may exist "whenever counsel is so situated that the caliber of his services may be substantially diluted." ( Ibid., fn. omitted; Smith v. Lockhart (8th Cir.1991) 923 F.2d 1314, 1320 .)
(6b) In this case, Hardy claims Demby was burdened by an actual conflict of interest because he was named as a defendant in Hardy's federal lawsuit. As a result, Hardy contends Demby provided ineffective assistance of counsel. We agree that being named as a defendant in a lawsuit by one's client can place an attorney in a situation where his or her loyalties are divided. For example, in United States v. Hurt, supra, 543 F.2d 162 , appellate counsel alleged on appeal that trial counsel provided inadequate representation. When trial counsel sued appellate counsel for libel, the latter sought to be excused from the case due to a conflict of interest. The district court denied the motion but the circuit court of appeals vacated the judgment and remanded the case, explaining that although appellate counsel had little to fear from the libel suit because of a judicial proceeding privilege (cf. Civ. Code, § 47, subd. (b)), counsel sincerely believed he was at risk and the suit thus prevented him from actively representing his client on appeal. ( Hurt, supra, at pp. 167-168 .)
More directly on point is a recent decision by the Eighth Circuit Court of Appeals. In Smith v. Lockhart, supra, 923 F.2d 1314 , a criminal defendant (Smith) in Arkansas state court filed a class action lawsuit in federal court naming as defendants his attorney (a part-time judge), the trial judge, and others. The lawsuit alleged the defendants conspired to deprive Smith and other criminal defendants of their rights to a speedy trial and to the effective assistance of counsel. Despite the pending lawsuit, the state trial judge refused to appoint new counsel and expressly found no conflict of interest existed, exclaiming that "`I don't care who you've sued, Mr. Smith.'" ( Id. at p. 1320.)
The district court denied a writ of habeas corpus but the appellate court reversed, stating, "A federal lawsuit pitting the defendant against his attorney certainly suggests divided loyalties and gives the attorney `a personal interest in the way he conducted [Smith's] defense — an interest independent of, and in some respects in conflict with, [Smith's] interest in obtaining a judgment of acquittal.'" ( Smith v. Lockhart, supra, 923 F.2d at p. 1321 , quoting Douglas v. United States (D.C. 1985) 488 A.2d 121, 136 .)
As explained in both United States v. Hurt, supra, 543 F.2d 162 , and Smith v. Lockhart, supra, 923 F.2d 1314 , an attorney may suffer a conflict of interest if the attorney's client names the attorney as a defendant in a *137 collateral lawsuit. Although there was thus a possibility of a conflict here, several factors lead us to conclude that no actual conflict existed in this case. First, unlike in the cases Hardy cites in support, Mr. Demby desired to continue his representation. He unequivocally stated on the record that he had reviewed the contents of the lawsuit with his superiors and believed that it would not inhibit his legal representation. The trial court, apparently aware of both Mr. Demby's reputation and the quality of his representation in the case to that point, accepted this explanation at face value.
By contrast, in Smith v. Lockhart, supra, 923 F.2d 1314 , defense attorney Marquette expressed misgivings about continuing his representation of the defendant. ( Id. at p. 1318.) Similarly, in United States v. Hurt, supra, 543 F.2d 162 , the appellate attorney himself asked the court to relieve him, citing a conflict of interest. ( Id. at p. 164 & fn. 7.) Indeed, although there was but a "tiny risk" that the attorney was vulnerable to a charge of libel, the reviewing court reversed and relied on the attorney's representations, noting, "There is no reason whatever to doubt counsel's sincerity." ( Id. at p. 167, fn. omitted.)
The United States Supreme Court has addressed this point, noting that "trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel." ( Cuyler v. Sullivan (1980) 446 U.S. 335, 347 [ 64 L.Ed.2d 333, 346 , 100 S.Ct. 1708 ].) A criminal defense attorney "`is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.'" ( Holloway v. Arkansas (1978) 435 U.S. 475, 485 [ 55 L.Ed.2d 426, 435 , 98 S.Ct. 1173 ], quoting State v. Davis (1973) 110 Ariz. 29, 31 [ 514 P.2d 1025, 1027 ].) Demby's considered opinion that the lawsuit would not prevent his full and active representation of Hardy is thus a significant factor when determining whether an actual conflict existed.
Second, our examination of the contents of the court files in Hardy's federal lawsuits reveals that they had no legitimate legal basis, thus validating Demby's evaluation that the suits would not impair his ability to defend Hardy. In the first lawsuit, Hardy alleged that Bardsley and Demby engaged in unprofessional and unethical conduct. In addition, although the complaint mentions due process of law and the right to effective counsel, the allegations were stated in conclusory terms. The complaint was received by the district court on March 10, 1983, and dismissed for lack of federal jurisdiction on March 15, 1983. When Hardy sought to appeal in forma pauperis, the district court denied the motion, noting the proposed appeal was not taken in good faith (see 28 U.S.C. § 1915 (a)) and was frivolous ( 28 U.S.C. § 753 (f)). The Ninth Circuit Court of Appeals denied Hardy's motion to file in forma *138 pauperis and eventually dismissed the appeal for failure to pay the docket fee to the district court. (U.S. Cir. Ct. Rules (9th Cir.), former rule 19(b).)
Hardy's second federal lawsuit, filed on May 5, 1983, alleged the same defendants violated his civil rights. The allegations were essentially the same as in the first suit, however, and the federal magistrate so found, recommending dismissal of the initial complaint as well as an amended complaint. The district court adopted the magistrate's finding. An appeal of this action met with the same end as did Hardy's first lawsuit, the district court again noting the suit was frivolous and taken in bad faith.
Viewing Demby's considered decision to continue with his representation of Hardy, as well as the lack of any merit in the collateral lawsuits filed by Hardy, it is not difficult to conclude there existed no actual conflict of interest here. (10) Although the possibility of a conflict was posed on these facts, we echo the sentiments of the Eighth Circuit Court of Appeals: "We recognize the danger of any holding implying that defendants can manufacture conflicts of interest by initiating lawsuits against their attorneys. [Citation.] A patently frivolous lawsuit brought by a defendant against his or her counsel may not, alone, constitute cause for appointment of new counsel. Trial judges must be wary of defendants who employ complaints about counsel as dilatory tactics or for some other invidious motive." ( Smith v. Lockhart, supra, 923 F.2d at p. 1321, fn. 11 , italics added; cf. Holloway v. Arkansas, supra, 435 U.S. at pp. 486-487 [ 55 L.Ed.2d at p. 436 ] [suggesting trial court need not grant relief where motion is made for dilatory purposes].)
(6c) The case at bar amply illustrates this point. Hardy made a Marsden motion and the trial court, solicitous of his rights, appointed private counsel to investigate the possible grounds for the motion. After Bermann's motion to dismiss was denied, Hardy raised pro se a second Marsden motion. After another hearing, that motion was also denied. Three days later, Hardy filed the first of his two frivolous federal lawsuits. Under the circumstances, it seems clear that Hardy was merely attempting to manufacture a possible conflict of interest to try and delay his trial. We conclude no actual conflict of interest is shown on these facts.
c. Duty of Inquiry
Hardy contends that even if he has failed to show an actual conflict of interest, there was sufficient evidence of a conflict to require the trial court to inquire into the basis of the potential problem. The record, however, shows the trial court was solicitous of Hardy's contention and inquired into its basis. We conclude any duty of inquiry was satisfied.
*139 (11) Finally, we reject Hardy's final basis for relief, namely, that reversal is required because of the appearance of impropriety. As explained, ante, at page 135, relief for a conflict of interest is premised on the showing of an actual conflict, not the mere appearance of a conflict.
6. Coconspirator Exception to the Hearsay Rule
As is clear, much of the evidence adduced against defendants at the guilt phase of their trial consisted of the testimony of persons who, at various times, were coconspirators. The trial court held a lengthy pretrial hearing to determine the admissibility of these statements under Evidence Code section 1223, the coconspirator exception to the hearsay rule. After the hearing, the court ruled the disputed statements were admissible, finding that Debbie Sportsman, Colette Mitchell, Ron Leahy, and Calvin Boyd were coconspirators. Defendants raise a number of challenges to the court's ruling. Before addressing the particular arguments, however, some background discussion is appropriate.
(12) Hearsay evidence is of course generally inadmissible. (Evid. Code, § 1200.) Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents "independent evidence to establish prima facie the existence of ... [a] conspiracy." ( People v. Leach (1975) 15 Cal.3d 419, 430 [ 124 Cal. Rptr. 752 , 541 P.2d 296 ], cert. den. sub nom. Kramer v. California (1976) 424 U.S. 926 [ 47 L.Ed.2d 335 , 96 S.Ct. 1137 ]; see People v. Steccone (1950) 36 Cal.2d 234, 238 [ 223 P.2d 17 ] [prima facie evidence is sufficient]; see also, Evid. Code, § 1223, subd. (c).) Once independent proof of a conspiracy has been shown, three preliminary facts must be established: "(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy." ( Leach, supra, at pp. 430-431, fn. 10 .)
a. Existence of a Conspiracy to Commit Insurance Fraud
The trial court held that there was prima facie evidence of a conspiracy to commit insurance fraud, and that the conspiracy was ongoing at the time of trial. This ruling permitted the prosecution to admit into evidence hearsay statements made by coconspirators uttered after the killings but before the trial. (13a) Reilly first contends the trial court erred in concluding that *140 the People established a prima facie showing that there existed at the time of trial a conspiracy fraudulently to obtain insurance proceeds. [9]
It is undisputed that, five days after the slayings, Cliff Morgan filed a claim with the two insurance companies that insured the lives of the victims, seeking benefits allegedly owing under those insurance policies. Reilly claims, however, that there was nothing fraudulent in filing such a claim because Nancy and Mitchell Morgan were dead and the insurance companies were legally obligated to pay out the benefits to someone, either Cliff Morgan or the heirs of Nancy and Mitchell Morgan.
We disagree and instead find the People presented substantial evidence from which the trial court could have found a prima facie showing of insurance fraud. Former Insurance Code section 556, subdivision (a), [10] as it read at the time the murders were committed, provided: "It is unlawful to: [¶] (1) Knowingly present ... any false or fraudulent claim for the payment of a loss under a contract of insurance." (Stats. 1979, ch. 557, § 1, pp. 1764-1765.) (14) As a general rule, a beneficiary who unlawfully kills the insured cannot recover benefits under the policy. ( Beck v. West Coast Life Ins. Co. (1952) 38 Cal.2d 643 [ 241 P.2d 544 , 26 A.L.R.2d 979 ] ( Beck ); Estate of Jeffers (1982) 134 Cal. App.3d 729, 732 [ 182 Cal. Rptr. 300 ]; Mize v. Reserve Life Ins. Co. (1975) 48 Cal. App.3d 487, 491, fn. 2 [ 121 Cal. Rptr. 848 ]; see generally, Annot., Killing of Insured by Beneficiary as Affecting Life Insurance or Its Proceeds, 27 A.L.R.3d 794 , 802-807, § 3, and cases cited [hereafter Annot., Killing of Insured].) (13b), (15) By applying for benefits under the policies, Morgan knowingly and falsely represented himself as a person able to legally receive the benefits under the terms of the policy.
Reilly counterargues that although Cliff Morgan could not lawfully receive the insurance benefits, the insurance companies were nonetheless liable to pay "somebody," thereby negating the existence of fraud. Thus, "the insurer is not relieved of liability because of the disqualification of the principal beneficiary" ( Beck, supra, 38 Cal.2d at p. 645 ), and "[u]nless the policy expressly provides otherwise, the insurer must still pay the proceeds in accordance with the contract of insurance as though the disqualified beneficiary had predeceased the insured or was otherwise incapable of taking or disqualified from taking the proceeds." (4 Couch on Insurance (2d *141 ed. 1984) § 27:158, pp. 855-856 [hereafter Couch]; see Annot., Killing of Insured, supra, § 7[a], at p. 813.) This argument is nonsensical; merely because someone may be lawfully entitled to the proceeds of the insurance policy does not alter the fact that Morgan's application for benefits was fraudulent.
We also find Reilly's legal support for his theory wanting. For reasons of public policy, courts have distinguished between cases involving fraud in obtaining a life insurance policy, and cases where the beneficiary decides to murder the insured after purchasing the insurance. As explained by one commentator, "An exception to the rule that the liability of the insurer is not affected by the beneficiary's unlawfully killing the insured may arise when the beneficiary is also guilty of fraud with respect to the insurer. For example, if it is established that the beneficiary conceived the idea of murdering the insured prior to the time the insurance was procured and with that thought in mind the beneficiary himself procured the policy ... so that the insurance policy was, in actual effect, at its inception, a contract between the beneficiary and the insurance company, as distinguished from a contract between the innocent insured and the company, the insurance company may defeat liability on the ground of fraud. Under this principle recovery is barred even by the estate of the insured." (Couch, supra, § 27:160, at p. 858, fn. omitted, italics added; see generally, Rest., Restitution, § 189(1), com. (e)(2) at p. 778.)
California has adopted the foregoing rule (see West Coast L. Ins. Co. v. Crawford (1943) 58 Cal. App.2d 771, 773 [ 138 P.2d 384 ]), as has virtually every jurisdiction that has considered the issue. (See, e.g., New England Mut. Life Ins. Co. v. Calvert (E.D.Mo. 1976) 410 F. Supp. 937, 940-941 , and cases cited; Chute v. Old American Ins. Co. (1981) 6 Kan. App.2d 412 [ 629 P.2d 734, 738-739 ]; Flood v. Fidelity & Guar. Life Ins. Co. (La. App. 1981) 394 So.2d 1311 , cert. den. 399 So.3d 608 ; Annot., Killing of Insured, supra, 27 A.L.R.3d, § 13[a], at pp. 825-826.)
(13c) In this case, the evidence showed Cliff Morgan purchased a large amount of life insurance shortly after beginning work at Equitable Life Insurance Company. Experts opined it was an unwise investment due to the high premiums as compared to Morgan's annual salary. Evidence also showed that the victims were killed shortly before the second, and more substantial, premium installment was due. Also, Hardy told Colette Mitchell that he must kill the victims by June 1, 1981, or the insurance would expire. Thus, there was evidence that the timing of the killings was not coincidental. The premise of Reilly's argument is thus unsound: the facts establish that Cliff Morgan, at the time he purchased the insurance policies on their lives, *142 intended to kill his wife and son. If so, the insurance companies may have been absolved of the obligation to pay benefits to anyone.
In any case, even if we assume Reilly is correct and the insurance companies were obligated to pay benefits to someone, Morgan's involvement in the murders eliminated him as a potential beneficiary and his application for benefits was thus false and fraudulent.
In addition to fraudulent conduct on Morgan's part, there was also evidence from which the trial court could conclude that Reilly and Hardy participated in a conspiracy to commit that crime. For example, the admissions of both defendants reveal that they expected to receive several thousand dollars as a result of Morgan's life insurance policies. Reilly's actions in hiring first Costello, then Boyd, and then Hardy, demonstrate his active involvement in the criminal enterprise. Hardy exhibited knowledge of the intended insurance fraud by admitting to Colette Mitchell that the victims had to be killed before June 1, 1981, when the second premium payment was due. Most, if not all, of these statements were admissible hearsay, being admissions of the defendants themselves. (Evid. Code, § 1220.) Accordingly, we reject Reilly's contention that there lacked sufficient facts to demonstrate a prima facie showing of a conspiracy to commit insurance fraud.
b. Insufficient Evidence of Insurance Fraud
(16) We also reject defendants' claim there was insufficient evidence to support the conviction for conspiracy to commit insurance fraud. Viewing the facts in a light most favorable to the respondent (see People v. Johnson (1980) 26 Cal.3d 557, 576 [ 162 Cal. Rptr. 431 , 606 P.2d 738 , 16 A.L.R.4th 1255 ]), we conclude a rational trier of fact could have found beyond a reasonable doubt the essential elements of that crime. Defendants strongly argue there was no evidence showing a false or fraudulent application for benefits, as required by former Insurance Code section 556, subdivision (a). As discussed above, however, there was ample evidence showing Cliff Morgan, knowing he was ineligible to collect the benefits under the policies because of his involvement with the murders, concealed that fact when applying for the benefits. There was thus sufficient evidence to support the conviction.
Defendants also argue that Reilly cannot be guilty of conspiracy because he was not acquainted with Cliff Morgan at the time the latter procured the policies in question. We disagree. That Morgan formed the idea of killing his wife before he met Reilly is irrelevant because there was no conspiracy until Morgan and Reilly — the two original members of the conspiracy — agreed to *143 kill Nancy Morgan for the insurance money. Moreover, after this agreement, Reilly actively participated in the scheme, soliciting first Marc Costello, then Calvin Boyd, and finally Hardy to perform the killing.
Defendants also argue there were several insurance policies covering the lives of the victims and there was no showing that Morgan procured these other policies with fraudulent intent. That point is irrelevant, however, because the evidence showed he made a false and fraudulent application to the companies listed in the information. We conclude there was sufficient evidence supporting the conviction for conspiracy to commit insurance fraud.
c. Continuing Conspiracy
(17a) Defendants next argue that, assuming there existed a conspiracy to commit insurance fraud, the trial court erred by finding that the conspiracy was ongoing at the time of trial. In so ruling, defendants claim, the trial court improperly prolonged the life of the conspiracy and, concomitantly, the ability of the prosecution to rely on the coconspirator exception to the hearsay rule. Defendants urge us to find the conspiracy ended with the death of the victims.
(18) The general rule is that a "conspiracy usually comes to an end when the substantive crime for which the coconspirators are being tried is either attained or defeated." ( People v. Saling (1972) 7 Cal.3d 844, 852 [ 103 Cal. Rptr. 698 , 500 P.2d 610 ].) "[An] insurance conspiracy would normally ... terminate[] upon the receipt of the insurance proceeds." ( Leach, supra, 15 Cal.3d at p. 436 .) "It is for the trier of fact — considering the unique circumstances and the nature and purpose of the conspiracy of each case — to determine precisely when the conspiracy has ended." ( Saling, supra, at p. 852 ; People v. Humphries (1986) 185 Cal. App.3d 1315, 1334 [ 230 Cal. Rptr. 536 ].)
(17b) The evidence in this case reveals that the primary goal of the conspiracy was the acquisition of money through the receipt of the insurance benefits. This case is thus unlike Leach, supra, 15 Cal.3d 419 , in which we cautioned that a conspiracy to commit murder does not "necessarily entail[] a second conspiracy to collect the insurance proceeds which will be paid as a matter of course upon the successful commission of the contemplated offense." ( Id. at p. 435.) Instead, the evidence (and reasonable inferences drawn therefrom) reveals Cliff Morgan, Reilly, Hardy, and others embarked on an intricate plan to defraud two insurance companies. (See Humphries, supra, 185 Cal. App.3d at p. 1333 ["the objective was monetary gain, not the removal of another person"].)
*144 After holding a hearing pursuant to Evidence Code section 403, the trial court concluded the evidence demonstrated prima facie a conspiracy to commit insurance fraud. In addition, it found that the conspiracy to defraud the insurance companies was a continuing one. [11] We agree. The conspiracy did not, as defendants argue, end with the death of the insureds. Instead, for purposes of this case, it continued until the coconspirators received the insurance proceeds ( Leach, supra, 15 Cal.3d at p. 436 ), or Morgan was convicted of unjustifiable homicide of the victims, thus disabling him from legally collecting the insurance proceeds. ( Saling, supra, 7 Cal.3d at p. 852 [conspiracy ends when substantive crime is defeated].) [12] Because the insurance companies had not yet paid out at the time of trial, the conspiracy was a continuing one, permitting the introduction of hearsay statements made during the time between the crime and the trial, pursuant to Evidence Code section 1223.
In so holding, we decline to accept defendants' invitation to find the trial court improperly extended the life of the conspiracy to permit the introduction of their coconspirators' hearsay statements against them. We are fully cognizant of Justice Jackson's eloquent admonition that "the looseness and pliability of the doctrine [of conspiracy] present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case." ( Krulewitch v. United States (1949) 336 U.S. 440, 449 [ 93 L.Ed. 790, 797 , 69 S.Ct. 716 ] [conc. opn. of Jackson, J.], quoted with approval in Leach, supra, 15 Cal.3d at p. 435 .) Considering the independent evidence presented at trial of a conspiracy to defraud the insurance companies, however, we conclude that *145 no improper inflation of conspiracy liability occurred here. We also note that a conspiracy theory was not pressed in this case solely to provide a "vehicle for using otherwise inadmissible hearsay evidence against a defendant." ( Leach, supra, 15 Cal.3d at p. 435 .) Instead, both Reilly and Hardy were charged with and convicted of the substantive offense of conspiracy under section 182.
d. Statements Made "in Furtherance" of the Conspiracy
(19a) Reilly apparently also contends that certain hearsay statements admitted at trial — principally, but not exclusively, those statements made after Hardy and Reilly were in pretrial detention — were not made "in furtherance of the objective" of the conspiracy. (Evid. Code, § 1223, subd. (a).) Instead, he claims the statements were made only to conceal the coconspirators' involvement in the conspiracy. He thus characterizes his case as one in which the trial court improperly found an implied "secondary conspiracy" to conceal, which existed after the primary conspiracy ended.
(20) Not every conspiracy to achieve a criminal objective is necessarily followed by a secondary conspiracy to conceal the first conspiracy. Thus, in People v. Leach, supra, 15 Cal.3d 419 , we explained that, "conspiracies are not to be deemed still operative merely because the conspirators act in concert to avoid `detection and punishment.'" ( Id. at p. 431, quoting in part Saling, supra, 7 Cal.3d at p. 853 ; see also Krulewitch v. United States, supra, 336 U.S. at p. 443 [ 93 L.Ed. at p. 794 ].)
(19b) Reilly's claim that the trial court admitted the challenged statements on the proscribed "implied secondary conspiracy" theory is meritless, however, because it is based on his assumption that the primary conspiracy ended with the death of the victims. As we explained, ante, at pages 143-145, the primary goal of the conspiracy was the fraudulent collection of insurance proceeds, not the death of the victims. Thus, the hearsay statements Reilly now challenges were made pursuant to the primary conspiracy that was ongoing at the time the statements were made, not an implied secondary conspiracy to conceal the first crime.
Hardy contends numerous hearsay statements were erroneously admitted at trial because the statements were not made "in furtherance of the objective" of the criminal conspiracy. (Evid. Code, § 1223.) In support, he describes several individual statements Reilly made to Mr. and Mrs. Sportsman, Debbie Sportsman, Kim H., and Calvin Boyd. For example, both James and Sonja Sportsman testified that when Reilly was in their home, he mentioned a man named Cliff Morgan who wanted to have his wife killed in *146 order to collect the insurance proceeds. Mrs. Sportsman also testified that Reilly intended to speak to a "kick-boxer" about the killing. Debbie Sportsman related numerous and damaging admissions by Reilly attesting to his involvement in the scheme, including his admission that he was at the Morgan home the night of the killings and heard Nancy Morgan crying and pleading for her life. Kim H. testified Debbie told her that Reilly had admitted his complicity to her. Boyd testified that Reilly had approached him about participating in the killing, and that after the slaying Reilly admitted that he and Hardy had committed the murders.
(21) In many cases, a statement of a coconspirator made after apprehension "does not in any sense further the criminal enterprise, but rather frustrates it." ( People v. Luker (1965) 63 Cal.2d 464, 476 [ 47 Cal. Rptr. 209 [ 407 P.2d 9 ].) Such statements are often the antithesis of "furthering" or "advancing" the criminal objective because they reveal secret actions by coconspirators which law enforcement can use to prevent the conspirators from realizing their criminal objective. We reemphasize, however, that no rigid rules exist in this area and that whether statements made are in furtherance of a conspiracy depends on an analysis of the totality of the facts and circumstances in the case. (See Saling, supra, 7 Cal.3d at p. 852 [whether conspiracy has ended depends on the "unique circumstances" of the case]; Humphries, supra, 185 Cal. App.3d at p. 1334 [same].) Accordingly, "[a]lthough it has been held that statements which merely narrate past events are not to be deemed as made in furtherance of a conspiracy [citations], such a rule cannot be applied mechanically." ( Saling, supra, 7 Cal.3d at p. 852, fn. 8 .)
(19c) In this case, the conspiracy to commit insurance fraud hinged on Cliff Morgan's ability to avoid being blamed for the killings because of the rule precluding a beneficiary who murders the insured from collecting on the policy. The evidence showed Hardy and Reilly's payment for killing the victims was dependent on Cliff Morgan's ability to collect the insurance proceeds. Should Morgan's complicity in the killings be revealed before the insurance company paid the policy proceeds, the criminal objective of the entire conspiracy — insurance fraud — would be thwarted. If either Reilly or Hardy's guilt was revealed, disclosure of Cliff Morgan's involvement would surely follow because their complicity was fatally intertwined with Morgan's. Thus, statements Reilly made to Debbie Sportsman, Calvin Boyd, and Kim H. (all found to be coconspirators) in an attempt to maintain secrecy and avoid discovery of the conspiracy furthered their criminal objective, namely, enabling Cliff Morgan to collect on the insurance policies. (See Saling, supra, 7 Cal.3d at p. 852, fn. 8 .)
This case is thus distinguishable from cases like People v. Leach, supra, 15 Cal.3d 419 , in which statements were made after the termination of the *147 criminal objective of the conspiracy. In such cases, the criminal objective — killing the victim — had been achieved and the conspiracy ended. Statements made in an attempt to avoid apprehension thus could not have furthered the criminal objective, it having already been accomplished. ( Saling, supra, 7 Cal.3d at p. 853 .) Because the conspiracy was ongoing when Reilly uttered most of the statements Hardy now challenges, and because the insurance companies had not yet paid, we conclude most of the statements Hardy challenges were made in an attempt to maintain the secrecy and thus the integrity of the criminal enterprise. So viewed, it follows that they were made in furtherance of the conspiracy within the meaning of Evidence Code section 1223, subdivision (a).
(22) We agree, however, that one of the challenged statements was not made in furtherance of the conspiracy. Thus, unlike Reilly's conversations with Debbie Sportsman in which they attempted to coordinate their alibis, or his solicitation of Calvin Boyd to kill the victims, Reilly's gratuitous ramblings to James and Sonja Sportsman about Cliff Morgan's desire to find a hit man cannot be deemed "in furtherance of" the conspiracy.
Because this evidence did not directly implicate Hardy, we need not apply the Chapman standard of review. ( Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]; see Leach, supra, 15 Cal.3d at p. 446 .) Instead, in order to determine whether admission of this statement was harmless, we must decide whether it is reasonably probable that Hardy would have achieved a different result in the absence of the error. ( People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]; Leach, supra, 15 Cal.3d at p. 445 [applying Watson ].)
We conclude the admission of Reilly's statements to the Sportsmans was harmless in light of the numerous times Hardy implicated himself in the killings to Colette Mitchell. For example, Hardy told her that he used bolt cutters to gain entry into the Morgan home, a fact not made public by the investigating officers. In addition, Hardy admitted to Colette (i) that he had been to the Morgan home the night of the killing, (ii) that he could hear Nancy Morgan snoring, (iii) that the killing had to occur before June 1, 1981, because the life insurance would expire, and (iv) that Colette should dispose of an M-1 rifle and some boots in his apartment because it could link him to the crime. Strong circumstantial evidence also linked Hardy to the crimes, such as the facts that he was with Reilly just before and after the killing, and that Reilly told Mike Mitchell that Hardy had agreed to commit the murders. In a statement clearly in furtherance of the conspiracy, Reilly told Debbie Sportsman to speak to Hardy so they could coordinate their alibis.
*148 (23) Reilly also challenges the admission of "an enormous number of extrajudicial statements" on the ground that they were not made "in furtherance of the objective of [the] conspiracy." (Evid. Code, § 1223, subd. (a).) He cites two that he describes as "illustrative." First, he challenges his own statement to one Joe Dempsey that "I can get [Hardy] to do it." This statement was properly introduced against Reilly as an admission. ( Id., § 1220.) Second, he complains the court should not have admitted Hardy's comment to Colette Mitchell that Reilly was in charge of the operation. Because the coconspirators were attempting to coordinate their alibis, however, we conclude this statement can be fairly characterized as made in furtherance of the conspiracy. To the extent Reilly intends to challenge other individual statements that he fails to enumerate, we reject the argument. Even if we assume some hearsay statements were erroneously admitted against him, most of the evidence against him took the form of his own admissions, which were clearly admissible. The erroneous introduction of additional hearsay statements was thus manifestly harmless. ( Watson, supra, 46 Cal.2d at p. 836 .)
Defendants provide a list of 42 individual statements or acts which they claim were improperly admitted or, at least, could have been excluded pursuant to Evidence Code section 352. They claim the statements and acts all occurred after the arrests but before trial, a period they claim was after the conspiracy had terminated. We have reviewed the list and find no error. Some of the statements were uttered by either Hardy or Reilly and were thus admissions as to them. Other acts, such as Colette Mitchell's false testimony at the preliminary hearing, Morgan's filing of the insurance claims, and Hardy's attempt to dispose of the rifle allegedly "stolen" from Morgan, were clearly probative of guilt irrespective of the coconspirator status of the actor. Still others, such as Mike Mitchell's move to New York and Cliff Morgan's failure to pay for the victims' funeral expenses, were of marginal relevance and clearly harmless even if improperly admitted.
Finally, even if we assume the trial court would have excluded some of the listed statements and acts pursuant to Evidence Code section 352, defendants failed to object on that ground and thus waived the claim for appeal.
e. Coconspirator Status
(24a) Reilly contends the trial court erred when, after holding a hearing on the subject, it declared Debbie Sportsman, Colette Mitchell, Ron Leahy, and Calvin Boyd were coconspirators. In support, he argues there was no evidence showing any of the four intended to kill the victims. (25) "To sustain a conviction for conspiracy to commit a particular offense, the *149 prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense." ( People v. Horn (1974) 12 Cal.3d 290, 296 [ 115 Cal. Rptr. 516 , 524 P.2d 1300 ].)
(24b) By arguing that none of the above mentioned coconspirators intended to kill, Reilly again loses sight of the fact that the objective of the conspiracy was not to kill but to commit insurance fraud. Thus, the intent to kill is irrelevant in this context. The true inquiry is whether Debbie Sportsman, Colette Mitchell, Ron Leahy, or Calvin Boyd intended to commit insurance fraud.
We begin with Debbie Sportsman. Although not a member of the conspiracy from the outset, she willingly joined and contributed to its success. For example, she advised Reilly on how to carry out the crime, suggesting that he use Mike Mitchell's car instead of one that could be more easily linked to him. She helped Reilly cash a check so he would have money to buy the bolt cutters. On one occasion, she engaged Nancy Morgan in conversation to allow Cliff Morgan and Reilly to go to another room and discuss some details of the planned killing. After the murders, she collaborated with Reilly to coordinate his alibi story with the other coconspirators. Most important, she intended to share in the proceeds: Reilly promised her that when he received his share of the insurance proceeds, he would buy her a new car and take her to either Hawaii or Tahiti. We thus conclude there was ample evidence to find Debbie Sportsman was a coconspirator.
We reach the same conclusion when we consider Colette Mitchell. Like Debbie Sportsman, there is no evidence Colette was an original member of the conspiracy. Her main contribution to the conspiracy came later when she attempted to prevent police from discovering evidence that could have implicated Reilly or Hardy. Thus, she testified falsely at Hardy's preliminary examination, supporting his alibi that he was at home with her the entire night of the killings. After Hardy's arrest, she complied with his instructions and disposed of the rifle and boots that could have linked him to the murders. In addition, she acted with Ron Leahy to attempt to persuade Calvin Boyd and Debbie Sportsman to stop talking about the crime, going so far as to threaten them with physical harm. She thus clearly assisted the other conspirators to keep the police from learning the true nature of the conspiracy. Unlike Debbie Sportsman, there was no direct evidence Colette intended to personally share in the fraudulently obtained insurance benefits as a result of her involvement. Nevertheless, the trial court could reasonably infer from the depth of her involvement that she expected to share in the profits from the criminal enterprise through her boyfriend, defendant Hardy, and that she thus shared the criminal intent of the other coconspirators to commit insurance fraud.
*150 Calvin Boyd was an early member of the conspiracy, agreeing to kill the victims for $1,000 and some cocaine. At one point, Boyd received a rifle (provided by Cliff Morgan) as partial payment. Boyd ultimately backed out when Cliff Morgan and Reilly could not raise the $1,000, apparently because they had spent all their money trying to hire a "Mafia hit man" through Marc Costello. After the killing, Boyd promised not to reveal what he knew if Reilly promised not to reveal that Boyd was a fugitive from justice. Reilly later promised to give Boyd a car (or sell it to him at a low price) in return for his silence. We conclude there was sufficient evidence showing Boyd was a coconspirator.
The evidence showing Ron Leahy was a coconspirator is more problematic. There is no indication he knew of Morgan, Reilly, and Hardy's plan to commit insurance fraud. Leahy's participation consisted mostly of helping Reilly maintain the secrecy of the criminal plot by destroying evidence or threatening witnesses. Unlike Debbie Sportsman or Leahy's sister Colette, however, there is no evidence from which we may infer he intended to share in the profits resulting from a successful insurance scam. His actions consisted mainly of helping the defendants avoid a conviction for murder. Whether Ron Leahy shared the intent to commit insurance fraud is thus a close question.
Even if we assume Leahy was erroneously considered a coconspirator, however, defendants would not be entitled to relief unless the admission of Leahy's hearsay statements prejudiced them. Most of the evidence from Leahy, however, consisted of his recounting what Reilly and Hardy told him. Such hearsay statements were properly introduced against the defendants as admissions. (Evid. Code, § 1220.) Nothing Leahy said was particularly damaging and we thus conclude that even if the trial court erred in ruling Leahy was a coconspirator, the error was harmless.
f. Right to Due Process and Confrontation
Reilly briefly argues that admission of hearsay statements against him by way of the coconspirator exception in Evidence Code section 1223 violates his state and federal right to due process. (U.S. Const., Amend. XIV; Cal. Const., art. I, § 7, subd. (a).) Other than a brief mention of the argument, however, he does not expand on the issue with either argument or citation to relevant authority. We thus decline to address the issue. ( Wharton, supra, 53 Cal.3d at p. 563; People v. Blankenship (1989) 213 Cal. App.3d 992, 995-996 [ 262 Cal. Rptr. 141 ].)
(26) Both Hardy and Reilly also contend the admission of hearsay evidence under Evidence Code section 1223 violates their right to confront *151 the witnesses against them. (U.S. Const., Amends. VI, XIV; Cal. Const., art. I, § 15.) Both this court and the United States Supreme Court have rejected this argument ( People v. Brawley (1969) 1 Cal.3d 277, 286-291 [ 82 Cal. Rptr. 161 , 461 P.2d 361 ], cert. den. sub nom. Baker v. California 400 U.S. 993 [ 27 L.Ed.2d 441 , 91 S.Ct. 462 ]; Bourjaily v. United States (1987) 483 U.S. 171, 183 [ 97 L.Ed.2d 144, 157-158 , 107 S.Ct. 2775 ]), and neither defendant presents any reason why we should reexamine the issue. We therefore reject this argument as well.
g. Jury Instructions
(i) CALJIC No. 3.16
The jury was instructed with a variation of CALJIC No. 3.16: "If the crimes listed in the information were committed by anyone, the witnesses named below were an accomplice as a matter of law and their testimony is subject to the rule requiring corroboration: Debbie Sportsman, Colette Mitchell, Ron Leahy, John Hardy, Calvin Boyd, Sean Fitzgerald, and Marc Costello." (27) Defendants contend this instruction created an irrebuttable presumption that a conspiracy existed. They reason that murder was a crime "listed in the information," that it was obvious that the victims were murdered, and thus the named persons were accomplices. Since, in this context, accomplices are essentially identical to coconspirators, the named persons were coconspirators. Therefore, defendants claim, a conspiracy must have existed.
Even were we to agree that the instruction, viewed in isolation, could be interpreted in this manner, we conclude no reasonable juror would have so interpreted the instruction in light of the other instructions. For example, the jury was specifically instructed that "Each defendant ... is individually entitled to, and must receive, your determination whether he was a member of the alleged conspiracy. As to each defendant you must determine whether he was a conspirator by deciding whether he willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy." In light of this direct and specific instruction, we conclude no reasonable juror would have interpreted CALJIC No. 3.16 in the manner now argued by defendants. ( Wharton, supra, 53 Cal.3d at p. 574 [court interprets instruction as would a reasonable juror].)
By parity of reasoning, we also reject the argument — apparently based on the Fifth Amendment — that CALJIC No. 3.16 "stripped" defendants of the presumption of innocence. We note that the jury was specifically instructed that criminal defendants "are presumed to be innocent until the contrary is *152 proved." Similarly, we perceive no Sixth Amendment violation, despite defendants' argument that CALJIC No. 3.16 removed a portion of the jury's factfinding function and thereby infringed on their right to a jury trial.
(28) Reilly also argues CALJIC No. 3.16 left the jury with "little, if any, alternative but to convict the named defendants," apparently because the seven persons named could not be "accomplices" unless at least one of the charged defendants was the actual perpetrator of a charged crime. In his reply brief, he also complains that there was insufficient evidence to conclude as a matter of law that Fitzgerald, John Hardy, or Costello were accomplices.
The record shows, however, that Reilly's trial attorney, Lasting, specifically requested the challenged instruction, presumably so he could argue the testimony of the named persons should be viewed with distrust. (See CALJIC No. 3.18.) Indeed, Lasting made this precise argument in his closing statement. Because it is manifest that Lasting had a legitimate tactical reason for requesting this instruction, we conclude any error was invited and Reilly is precluded from challenging the correctness of the instruction on appeal. ( People v. Hernandez (1988) 47 Cal.3d 315, 353 [ 253 Cal. Rptr. 199 , 763 P.2d 1289 ].)
(ii) Termination of the Conspiracy
(29) Defendants also argue the trial court erred by failing to instruct the jury sua sponte to determine when the conspiracy ended. Had the jury been provided with such an instruction, they claim, it might have concluded that the charge of conspiracy to commit insurance fraud was not proved, and that many of the statements made by alleged coconspirators could not be considered. We reject this argument because the jury instructions clearly gave the jury the choice of finding the conspiracy charge untrue. Further, the jury was told that, "No act or declaration of a conspirator that is committed or made after the conspiracy has been terminated is binding upon his coconspirators and they are not criminally liable for any such act." The jury was thus given the option of finding that the conspiracy had ended and that the statements made after such termination could not be held against the former conspirators.
Defendants next contend the trial court should have determined as a matter of law, and instructed the jury, that the conspiracy ended no later than the day of Cliff Morgan's arrest. They argue it is "constitutionally offensive" to hold that a conspiracy can be ongoing at the time of trial, but refer us to no authority so holding. We reiterate that the conspiracy continued until its *153 criminal objective (receipt of the insurance proceeds) was attained, or the goal was defeated. ( Leach, supra, 15 Cal.3d at p. 436 ; Saling, supra, 7 Cal.3d at p. 852 .) Defendants admit that at the time of Morgan's arrest, "a determination had been made that the insurance proceeds would not be paid to him unless and until the issue of whether he was an intentional killer was resolved." Implicit in this statement is the possibility that the decision whether to pay was still pending. Thus, the conspiracy had not yet been defeated or permanently frustrated at the time of trial.
(iii) Elements of Conspiracy to Commit Insurance Fraud
The instruction on conspiracy to commit insurance fraud provided that in order to prove insurance fraud, the People must show: "1. That a person presented or caused to be presented a false or fraudulent claim for payment of a loss covered by insurance, and [¶] 2. That such person acted with the specific intent to defraud." (30) Defendants argue that this instruction is defective because it does not include the legal definition, and precise elements, of the terms "fraud" and "specific intent to defraud." There are two answers to this claim. First, the terms defendants challenge are words in common use and of common knowledge; thus, their definition is not necessary. (See People v. Taylor (1953) 116 Cal. App.2d 802, 806-807 [ 254 P.2d 179 ] [not necessary to define "fraud," "artifice," "trick," and "device" for jury].) Second, because the instruction given was correct, it was incumbent on defendants to request clarifying language. Their failure to do so waived the issue. ( People v. Sully (1991) 53 Cal.3d 1195, 1235 [ 283 Cal. Rptr. 144 , 812 P.2d 163 ].)
h. Summary
We thus conclude the trial court correctly ruled that Reilly, Hardy, Cliff Morgan, and others engaged in a conspiracy to commit insurance fraud, that the conspiracy was a continuing one that did not end with the death of the victims, and that statements by coconspirators made after the killings but before trial could be admitted at trial pursuant to Evidence Code section 1223 to the extent the statements were made in furtherance of the conspiracy. Although one statement was admitted that was not uttered in furtherance of the conspiracy, its admission was harmless. Finally, even if we assume the trial court erred in finding Ron Leahy was a coconspirator, that error was harmless.
7. Griffin Error
(31) It is a bedrock principle in our jurisprudence that one accused of a crime cannot be compelled to testify against oneself. (U.S. Const., Amend. *154 V; Cal. Const., art. I, § 15.) In order that an accused not be penalized for his invocation of this fundamental right, the prosecutor may neither comment on a defendant's failure to testify nor urge the jury to infer guilt from such silence. ( Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ] ( Griffin ); People v. Hovey (1988) 44 Cal.3d 543, 572 [ 244 Cal. Rptr. 121 , 749 P.2d 776 ].) (32a) Defendants contend the prosecutor committed Griffin error during closing argument.
During trial, both Colette Mitchell and Ron Leahy testified that Reilly told them he knew the identity of the true murderers and he would reveal that information when the time was right. During closing argument, the prosecutor referred to this testimony and suggested that if Reilly was not the actual killer, he would have already revealed his information to save himself. The prosecutor continued: "Ladies and gentlemen, ... ask yourself the question, why doesn't [Reilly] just come out and say, I didn't do it, it was Cliff."
This comment was clearly Griffin error as defendant was constitutionally entitled to be free of such adverse comment. (33) Such error requires reversal unless we can conclude it was harmless beyond a reasonable doubt. ( United States v. Hasting (1983) 461 U.S. 499, 507-509 [ 76 L.Ed.2d 96, 105-106 , 103 S.Ct. 1974 ]; Chapman v. California, supra, 386 U.S. 18 ; Hovey, supra, 44 Cal.3d at p. 572.) To paraphrase the high court, we ask whether, absent the prosecutor's reference to Reilly's failure to testify, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? ( Hasting, supra, 461 U.S. at pp. 510-511 [ 76 L.Ed.2d at p. 107 ].)
(32b) We conclude the error was harmless beyond a reasonable doubt. The evidence of Reilly's guilt was overwhelming, consisting of an interlocking web of admissions from numerous persons, including evidence of Reilly's own admissions. The evidence of Reilly's comments to Debbie Sportsman — essentially a confession — was particularly strong. There was evidence that Reilly used bolt cutters to gain entry to the victims' home, that he knew the type of weapon used in the slayings (a fish knife), and that he had human blood on his shoe when arrested. Sean Fitzgerald accompanied Reilly to the restaurant where Cliff Morgan gave Reilly some of the promised money. We also note that the trial court instructed the jury at the guilt phase of the trial not to draw any adverse inference of guilt from the fact that Reilly did not testify. Under these circumstances, it is clear that the jury would have convicted Reilly even had the prosecutor refrained from the prohibited argument. (By so concluding, we need not reach the argument by defendants that Reilly did not waive the issue by failing to object, and that if he did, defense counsel provided constitutionally ineffective assistance of counsel by failing to object.)
*155 8. Comment by Codefendant's Counsel on Defendants' Failure to Testify
Defendants contend their Fifth Amendment rights were violated when counsel for codefendant Morgan commented on their silence during trial.
a. Facts
Jack Stone represented codefendant Cliff Morgan at trial. During closing argument, Stone emphasized the circumstantial nature of the evidence against Morgan. He then stated, "All those witnesses that got up there, Debbie, Calvin, Costello, they were accusers not only of Cliff [Morgan] but they accused [Reilly]. Mr. Lasting [Reilly's counsel] got up, had a chance to cross-examine every one of them —." At that point, Mr. Lasting objected and, out of the jury's presence, opined, "There is the clear implication that [Reilly] has not testified, that Cliff didn't have the opportunity to cross-examine [him]. I think it's improper. I think it's an implication, it refers to ... the fact that I didn't call him as a witness." Lasting, joined immediately by Demby, then moved for a mistrial.
The prosecutor, Mr. Jonas, stated he believed that it was improper for anyone to comment on a defendant's silence. Stone indicated he did not intend to pursue the line of argument but he disagreed with the prosecutor, saying case law supported his right to comment on a codefendant's failure to testify. [13] The trial court sided with the prosecutor and, impliedly, directed Stone to refrain from commenting on Reilly and Hardy's failure to testify. It then denied the mistrial motion and further denied Demby's request that the jury be admonished, saying the jury instructions adequately covered the point.
Later in Stone's closing argument, he described the testimony concerning a lunchtime meeting between Morgan and Reilly in which the two allegedly discussed the killing. Morgan testified he told Reilly how much insurance he had purchased for his family and Reilly then said something to the effect, "One could kill his wife for that amount of money." The gist of Stone's argument was that Morgan did not initiate the idea of the killings, but that *156 the idea originated with Reilly. Stone continued: "During that lunch time conversation, we weren't there. There were only two people there. Cliff Morgan and Buck Reilly. [¶] Cliff Morgan got up on the witness stand and told you what his side of it was. We have to guess at what Mr. Reilly's side of that conversation was other than the fact that we know that he initiated the thought of knocking off Nancy Morgan for the insurance money." There was no immediate objection.
Still later, Stone remarked: "All we know is what Cliff told us. [¶] If you know a man has nothing to hide, he gets up on that witness stand and he tells you what's in his mind. And that's what Cliff did. He got up there, he let Mr. Jonas whack away at him for three days, the other two attorneys whacked away at him for three days, and then he bared his soul in front of you, and that's the soul of a man who's been in jail for two years for a crime he did not commit; he has wasted away physically and mentally, and he is frustrated. But he can't get the one person that's accusing him to tell him what went on. That's why Mr. Morgan looks the way he does." [14] As before, there was no immediate objection. Soon thereafter, the proceeding was adjourned for lunch.
On resumption of the proceedings a few hours later, both Lasting and Demby renewed their mistrial motion, claiming Stone improperly commented on their respective clients' right to remain silent. In particular, they cited Stone's comment that, "If you know a man has nothing to hide, he gets up on that witness stand and he tells you what is in his mind and that is what Cliff did." The trial court disagreed, explaining that the "nothing to hide" comment was not "an innuendo that Mr. Reilly or Mr. Hardy did not testify. All he is saying is that Mr. Morgan has nothing to hide and that's why he got up on the witness stand and testified." The court denied the mistrial motions, reiterating its belief that it would be Griffin error for anyone — prosecutor, trial judge, or codefendant's counsel — to comment on a defendant's failure to testify.
b. Waiver
(34) The People first assert that neither Hardy nor Reilly adequately objected to the alleged Griffin error and thus waived the issue for appeal. ( People v. Ratliff (1986) 41 Cal.3d 675, 691 [ 224 Cal. Rptr. 705 , 715 P.2d 665 ].) We disagree. Counsel for both Hardy and Reilly objected and moved for a mistrial when Stone vaguely alluded to their silence by implying that he was not able to cross-examine Morgan's true accusers. The issue of *157 whether Griffin, supra, 380 U.S. 609 , applied to comment by an attorney for a codefendant was thoroughly discussed at that time, the trial court ultimately siding with the views of Hardy, Reilly, and the prosecutor. Stone did not immediately return to the subject. Although subsequent, allegedly improper, comments did not provoke prompt objections, the matter was taken up shortly thereafter in chambers and the defendants renewed their mistrial motions. From the record, it is thus clear that Hardy and Reilly objected to Stone's remarks via their mistrial motion upon resumption of the proceedings after the lunch break. Under the particular circumstances of this case, we find defendants adequately preserved the issue for appeal.
c. Comment on a Defendant's Silence by Other Than a Prosecutor
(35) As we discussed, ante, at pages 153-154, a prosecutor may not comment on a defendant's failure to testify. ( Griffin, supra, 380 U.S. 609 .) Defendants argue, and the People concede, that the rule is not limited to prosecutorial comment. Thus, in a joint trial of multiple codefendants, comment by an attorney representing one defendant on the silence of a codefendant violates the codefendant's constitutional right to freedom from adverse comment on his silence at trial. ( People v. Jones (1970) 10 Cal. App.3d 237, 243-244 [ 88 Cal. Rptr. 871 ] [affirming trial court ruling prohibiting defendant from commenting on codefendant's silence]; People v. Haldeen (1968) 267 Cal. App.2d 478, 481 [ 73 Cal. Rptr. 102 ] [affirming grant of new trial on this ground]; U.S. v. Castro (9th Cir.1989) 887 F.2d 988, 997 [harmless error]; U.S. v. Mena (11th Cir.1989) 863 F.2d 1522 , 1533-1534 [same]; U.S. v. Patterson (9th Cir.1987) 819 F.2d 1495, 1506 [same]; United States v. Moreno-Nunez (9th Cir.1979) 595 F.2d 1186, 1187 [same]; United States v. Alpern (7th Cir.1977) 564 F.2d 755, 761 [same]; De Luna v. United States (5th Cir.1962) 308 F.2d 140 [pre- Griffin ; reversible error]; 75A Am.Jur.2d (rev.) Trial, § 586, pp. 180-181; but see U.S. v. Anderson (8th Cir.1989) 879 F.2d 369 , 379, fn. 4 [declining to resolve issue].)
When improper comment on a defendant's silence occurs, the error requires reversal of the judgment unless a reviewing court concludes the error was harmless beyond a reasonable doubt. ( United States v. Hasting, supra, 461 U.S. at pp. 507-509 [76 L.Ed.2d at pp. 105-106]; Hovey, supra, 44 Cal.3d at p. 572.) Although it is error for either the prosecutor or counsel for a codefendant to comment on a defendant's silence, we recognize that the identity of the speaker can make a difference when determining whether an improper remark was harmless beyond a reasonable doubt. Thus, a comment alluding to the silence of a defendant that would require reversal if made by a prosecutor may be deemed harmless — or even not error — if made by a codefendant's attorney. Two factors convince us to recognize this difference.
*158 First, although a defendant has a Fifth Amendment right to freedom from adverse comment on his silence, a codefendant has a concurrent Sixth Amendment right to a full and vigorous defense. Courts balancing these two rights have thus concluded that "oblique" or "indirect" references by a codefendant to a defendant's silence, while improper, do not require reversal. ( U.S. v. Castro, supra, 887 F.2d at p. 997 ["indirect" reference deemed harmless]; U.S. v. Patterson, supra, 819 F.2d at p. 1506 ["statements only indirectly referred to defendants' failure to testify"; error deemed harmless]; United States v. Alpern, supra, 564 F.2d at p. 761 ["isolated and oblique reference to his codefendants' failure to take the stand"]); United States v. Shuford (4th Cir.1971) 454 F.2d 772, 779 [oblique references may be harmless].) In other words, "[improper comment] by counsel for codefendant does not constitute reversible error where the reference is indirect and the defendants' positions are not antagonistic, or where there is substantial incriminating evidence against all defendants." (75A Am.Jur.2d (rev.) Trial, § 586, p. 180, fns. omitted.)
Thus, the rule permits a codefendant to emphasize to the jury that his credibility is strong because he took the stand and submitted to cross-examination. In addition, if such argument indirectly or obliquely refers to a codefendant's silence, the error is generally found harmless. For example, in U.S. v. Patterson, supra, 819 F.2d 1495 , counsel for defendant Patterson, who testified, argued: "`[Patterson] is different than the other defendants in this case. He's different for one reason among many, but the one reason is that he has taken the stand and faced his accusers. He's allowed himself to be cross-examined. He has no obligation to do that in this country. [¶] ... [¶] The point that I am making is that when you gauge ... [Patterson's] testimony and his courage in taking the stand, and any nervousness that you may have seen, you have to put him in the context in which he is testifying. He has no protection. He is totally exposed and he is at the mercy of you 12 people.'" ( Id. at p. 1506.)
The Patterson court ruled that while counsel's comments were improper, "they did not cross the line of reversible error. The statements only indirectly referred to the [other] defendants' failure to testify. They do not benefit Patterson at the expense of the other defendants. Nor do they stress any inference that the defendants were guilty because they chose to remain silent." ( U.S. v. Patterson, supra, 819 F.2d at p. 1506 .) After noting the jury was properly instructed not to infer guilt from the failure to testify, the court concluded the error was harmless.
A second reason why comment by a codefendant's counsel on a defendant's silence is different from comment by a prosecutor is the unique role a *159 prosecutor plays in a criminal trial. "Given the prosecutor's institutional role, when the prosecutor merely `comments' on the failure of an accused to testify, the reference is in all likelihood calculated to encourage the jury to equate silence with guilt; reasonable judicial economy thus permits a finding of reversible error. When the `comment' comes from an actor (such as counsel for a codefendant) without an institutional interest in the defendant's guilt, however, it would be inappropriate to find reversible error as a matter of course. Instead, the court should ask whether the comment actually or implicitly invited the jury to infer guilt from silence." ( U.S. v. Mena, supra, 863 F.2d at p. 1534, italics in original.)
(36) We agree with the Mena court's assessment and apply those principles to Stone's comments in this case. The first comment ("Mr. Lasting got up, had a chance to cross-examine everyone of them —") was arguably aimed at insinuating that codefendant Morgan was disadvantaged because he was unable to question Reilly, one of his principal accusers. Lasting's objection, however, prevented Stone from finishing the thought and in the subsequent discussion in chambers, the trial court made clear that Stone was prohibited from commenting on Hardy's and Reilly's silence. Under any standards, then, the first challenged statement did not run afoul of Griffin, supra, 380 U.S. 609 .
Stone's next questionable remark concerned his inability to know Reilly's version of the lunchtime conversation with Morgan. Although the comment ("We have to guess at what Mr. Reilly's side of that conversation was....") arguably alluded to the fact that Reilly did not testify, the reference is clearly tangential and indirect. We conclude that, even if improper, the comment does not require reversal of Reilly's conviction. Moreover, because Hardy was not mentioned at all, this remark does not implicate his rights under Griffin, supra, 380 U.S. 609 , and its progeny.
The most troublesome statement Stone made in his closing argument was this: "If you know a man has nothing to hide, he gets up on that witness stand and he tells you what's on his mind.... But [Morgan] can't get the one person that's accusing him to tell him what went on." This statement most clearly illustrates the difference between prosecutorial comment and comment by another defense attorney. If the challenged statement was made by the prosecutor, it might constitute reversible error as to Reilly [15] because, coming from a prosecutor, the probable meaning of the statement is a call to the jury to improperly infer guilt from Reilly's silence. Coming from a prosecutor, it might be difficult to conclude the error was harmless beyond a reasonable doubt.
*160 The remark here, however, was uttered by a lawyer for a codefendant. We thus cannot be so quick to conclude Stone necessarily intended the prohibited inference. Instead, the comment is subject to the equally plausible interpretation that the jury should believe Morgan's testimony because he took the stand and subjected himself to cross-examination. Indeed, that is how the trial court interpreted the remark.
Under such circumstances, "[we] should ask whether the comment actually or implicitly invited the jury to infer guilt from silence." ( U.S. v. Mena, supra, 863 F.2d at p. 1534, italics in original.) It is clear Stone did not actually ask the jury to infer Reilly was guilty because of his silence. Instead, he said "If you know a man has nothing to hide, he gets up on that witness stand and he tells you what's in his mind. And that's what Cliff did. " (Italics added.) After emphasizing that Morgan was cross-examined by the prosecutor, Stone continued: "that's the soul of a man who's been in jail for two years for a crime he did not commit; he has wasted away physically and mentally, and he is frustrated. But he can't get the one person that's accusing him to tell him what went on. That's why Mr. Morgan looks the way he does. " (Italics added.) Thus, rather than urging the jury to infer Reilly was guilty because he declined to testify, Stone instead used Reilly's silence to embellish his point that Morgan was frustrated and that was why he looked drawn and haggard.
Nor can we conclude Stone's comments implicitly invited the jury to draw prohibited inferences. Although the "nothing to hide" comment conceivably could be construed as an improper comment on Reilly's silence, the interpretation is a tenuous one. Moreover, we are not privy to Stone's vocal inflections or gestures. As a result, we must rely on the interpretation of the trial judge, who was present and better able to discern the true meaning of a statement which appears ambiguous on the face of the cold record. (Cf. People v. Sanders (1990) 51 Cal.3d 471, 501 [ 273 Cal. Rptr. 537 , 797 P.2d 561 ] [when ruling on a motion to quash the jury venire, we grant "considerable deference" to trial judges because of "`their powers of observation, their understanding of trial techniques, and their broad judicial experience'"].) Significantly, the trial judge — who was sensitive to defendants' Griffin claim and directed Stone not to comment on their silence — found Stone was not insinuating defendants were guilty because they remained silent. Instead, the court concluded: "All he is saying is that Mr. Morgan has nothing to hide and that's why he got up on the witness stand and testified." We agree and conclude the challenged statement did not implicitly urge the jury to draw a prohibited inference. On these facts, then, we find no Griffin error.
Even were we to find some impropriety, any misstep in this regard must be considered harmless beyond a reasonable doubt. ( United States v. Hasting , *161 supra, 461 U.S. at pp. 507-509 [76 L.Ed.2d at pp. 105-106].) To paraphrase the high court, we ask whether, absent Stone's allusion to Hardy and Reilly's failure to testify, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? ( Id. at pp. 510-511 [ 76 L.Ed.2d at p. 107 ].) We must answer that question in the affirmative. As we explained, ante, at page 154, the evidence of guilt was overwhelming, consisting of the testimony of numerous witnesses who, by and large, complemented each other, reinforcing their credibility. Both Hardy and Reilly admitted their guilt to others. There was physical evidence that was consistent with the stories of the various persons involved (fish knife, blood on the shoe, bolt cutters, coin collection, diamonds from the ring, rifle), evidence of opportunity (Hardy's alibi was undercut when Colette Mitchell changed her story), evidence of intent (several people knew of the insurance policies, the first attempt with Marc Costello), and payment (Sean Fitzgerald counted out $2,500 that Morgan gave Reilly). Significantly, the trial court instructed the jury at the guilt phase of the trial not to draw any adverse inference of guilt from the fact that neither Hardy nor Reilly testified. (See United States v. Patterson, supra, 819 F.2d at p. 1506 [citing trial court's admonishment on this point in support of its conclusion the error was harmless].) Under these circumstances, we find any error harmless.
Because we find it certain beyond a reasonable doubt that the jury would have convicted defendants even absent the Griffin error committed by the prosecutor and any error in admitting Stone's comments, we also conclude that, considered together, any error was harmless. We also reject Hardy's further contentions that the challenged remarks violated his right to a fair trial under the Sixth Amendment and the due process clause of the Fourteenth Amendment, and his right to a reliable penalty determination under the Eighth Amendment.
9. Lying in Wait
a Jury Instructions
The jury was presented with two theories of first degree murder: (1) premeditated and deliberate murder, and (2) murder perpetrated by lying in wait. Prior to deliberating, it was instructed according to CALJIC No. 8.25 (4th ed.), which defines the concept of lying in wait. [16] (37) Both Hardy and Reilly contend this jury instruction was deficient because it did not also *162 require the jury to find they premeditated and deliberated the killing. As a result, they contend the instruction denied them their due process right to have the jury determine every element of the crime. ( In re Winship (1970) 397 U.S. 358, 364 [ 25 L.Ed.2d 368, 375 , 90 S.Ct. 1068 ].)
In support of their thesis, defendants rely on the wording of section 189. That section, as it read at the time the crimes were committed, stated in pertinent part: "All murder which is perpetrated by means of a destructive device or explosive, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, ... is murder of the first degree." (Stats. 1970, ch. 771, § 3, pp. 1456-1457, italics added.) Defendants claim that a proper construction of the highlighted language reveals lying in wait as a "kind" or subset of premeditated and deliberate murder, not as a substitute for it. Thus, they claim proof that the killing was committed by lying in wait does not relieve the People of independently proving premeditation and deliberation.
This precise theory has been adopted by a noted authority on criminal law, who contends that lying in wait is not a substitute for proving premeditation and deliberation, but is merely "employed as a specific illustration of `wilful, deliberate and premeditated' murder." (Perkins & Boyce, Criminal Law (3d ed. 1982) p. 128, fn. omitted.) This court, however, rejected this interpretation and instead views lying in wait "as the functional equivalent of proof of premeditation, deliberation and intent to kill." ( People v. Ruiz (1988) 44 Cal.3d 589, 614 [ 244 Cal. Rptr. 200 , 749 P.2d 854 ], and cases cited.) Thus, a showing of lying in wait obviates the necessity of separately proving premeditation and deliberation, and "imposition of a requirement of independent proof of premeditation, deliberation or intent to kill would be a matter for legislative consideration." ( Ibid. ) Defendants present no persuasive argument why Ruiz was incorrectly decided and we thus reject their first argument.
Defendant Hardy contends CALJIC No. 8.25 fails to accurately set forth the law. The key portion of the instruction to which he objects provides, "lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation." (Italics added.) Claiming the words "premeditation" and "deliberation" have different meanings, Hardy claims the instruction should not have been phrased in the disjunctive.
*163 This point was similarly rejected in Ruiz, supra, 44 Cal.3d 589 . As in that case, "We think it is unlikely the phrasing could have misled the jury.... [In addition,] the Legislature in adopting the lying-in-wait provision only required that the defendant be shown to have exhibited a state of mind which is `equivalent to,' and not identical to, premeditation or deliberation. Thus, the disjunctive phraseology in CALJIC No. 8.25 was neither inappropriate nor misleading." ( Id. at p. 615.)
Hardy submits that Ruiz be reexamined on this point, arguing we erred in concluding "the Legislature" required a defendant need harbor only an intent which was the "equivalent" to premeditation and deliberation. Instead, Hardy claims this notion originated with the drafters of the CALJIC instruction he is now challenging. In support, he notes that section 189 states, "All murder which is perpetrated by means of ... lying in wait, ... or by any other

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2618245. Public record. Not legal advice.