THE PEOPLE, Plaintiff and Respondent, v. DAVID REY FIERRO, Defendant and Appellant, 1 Cal. 4th 173

Opinion ARABIAN, J. Defendant David Rey Fierro was convicted by a jury of first degree murder (Pen. Code, § 187) and two counts of robbery (§ 211). The jury found true the special circumstance allegation that the murder was committed during the perpetration of a robbery (§ 190.2, subd. (a)(17)(i)), and also returned a special finding that defendant shot and killed the victim. As to each count the jury also found that defendant used a firearm to commit the offense. (§ 12022.5.) The jury fixed the penalty at death. This appeal is automatic. (§ 1239, subd. (b).) I. Facts A. Guilt Phase Evidence 1.

The Prosecution On the evening of January 6, 1985, Sam Allessie was robbed and murdered in front of the small grocery store which he owned with his wife, Trudy, in Glen Avon. Defendant, who was on parole for burglary, was arrested two days later. He was linked to the crimes by eyewitness identifications, fingerprints which he left on the victim’s truck, bloodstains in his car, and money from the robbery found in his wallet. As recounted at trial, the facts of this tragic episode unfolded as follows. About 6 p.m. on the evening in question, Sam and Trudy Allessie were preparing to close their store for the night.

As was their custom on Sunday evenings, they planned to deposit the day’s receipts in the night slot of their bank and then go to dinner. Trudy had placed in her purse approximately $4,000, comprised of checks, money orders and about $1,000 in cash. The cash was in $50 and $100 denominations. Trudy observed Sam look into his wallet, which he carried in his back pants pocket, for money to pay for dinner. They left through the front doors of the market and approached Sam’s pickup truck. Sam opened the passenger door for Trudy and circled around the back of the truck to the driver’s side.

As Trudy lost sight of Sam, she heard loud talking from the rear of the truck. Suddenly she saw a “kid” trying to unlock the driver’s door with Sam’s keys. She became scared and heard Sam holler, “Watch your purse, honey.” Trudy opened her door to join her husband and at that moment was confronted by the same “kid” she had seen moments earlier. He demanded money. Trudy responded, “All right, all right,” and opened her purse and handed him a bundle of currency. He then grabbed the purse and ran toward the rear of the truck, out of view. Trudy thereupon started out of the truck and heard a shot.

Running to the front of the store she found Sam on the ground, bleeding. As she screamed for help, a light colored car sped out of the parking lot and turned onto Mission Boulevard toward the freeway. About the time the Allessies were closing the store, Robert Gonzales was in a telephone booth outside the market talking to his girlfriend. Gonzales heard a gunshot and saw a man with a gun. Several seconds later, he observed the man fire a second shot and then run toward a yellow Pacer. As Gonzales took cover, he saw a figure enter the Pacer, which raced away in the direction of the freeway.

That same evening, Carol DiCenso and her husband, Antonio, were driving on Mission Boulevard in the area of Trudy’s Market. Carol was in the rear passenger seat. As they approached the market, Carol observed three men standing in a group; one was dressed in a white, short-sleeved T-shirt; the man in the center, Sam Allessie, was dressed in dark clothing; the man to Sam’s left was dressed in a black sleeveless tank-top shirt. As the DiCensos’ car drove past, Carol saw and heard a gunshot blast fired by the man in the white T-shirt. Sam Allessie slumped to his knees and fell over.

Seconds later, the man in the white T-shirt straddled the fallen body, stretched out his arm, and fired another shot into the victim. Carol DiCenso then observed the man in the white T-shirt bend over, put his arms around the victim in a “hugging” type motion and reach underneath him. In the meantime, the other man in the dark shirt, who had been standing nearby, started to run away. The shooter followed, running toward a car which had its lights on.

Moments later, Benita Watson, who was a passenger in another car travelling down Mission Boulevard, noticed a light colored AMC Pacer with a chrome luggage rack travelling in the same direction. Ms. Watson heard a woman scream and heard shouts to “follow that car.” The Pacer then accelerated and pulled away. Sam was dead when the police arrived at the scene. His car keys and wallet were missing. Blood spots and a bloody shoe print were observed leading away from the body.

Based on the descriptions of the assailant and the getaway car and conversations with local law enforcement officers, Sergeant Turley of the Riverside Sheriff’s Department focused on defendant as a possible suspect. Within several days, it was discovered that four fingerprints lifted from Sam Allessie’s truck matched defendant’s fingerprints. Shortly thereafter, defendant was detained and taken into custody. When he was stopped, he was driving an AMC Pacer with a luggage roof rack. His girlfriend, Laura Garcia (hereafter Laura Fierro), and a small child were passengers in the car.

A search of Laura Fierro’s purse at the station disclosed a man’s wallet containing defendant’s driver’s license. The wallet contained $650 in cash, comprised of four $100 bills and five $50 bills. Several weeks later, Mrs. Allessie identified defendant from both a photographic and a live lineup. At trial, she identified defendant as the man who had robbed her. Robert Gonzales also picked defendant from a photographic lineup. Although Carol DiCenso could not identify the man she saw that evening, her description of the shooter as wearing a light colored T-shirt matched Mrs. Allessie’s description of defendant.

A search of Laura Fierro’s house, where defendant lived, revealed several white short-sleeved T-shirts and a pink slip for the Pacer signed by defendant. Human blood was found on the sole of one of defendant’s shoes. Testing could only determine that it was human blood. A search of defendant’s Pacer revealed dried blood in the area of the front passenger door. Testing determined that it was not that of defendant but was consistent with the blood of Sam Allessie. An autopsy disclosed that the victim died of two gunshot wounds to the chest.

One wound was consistent with having been fired from a distance of up to 12 inches while the victim was standing, allowing the bullet to exit through the back. The other was a larger “contact” wound, meaning the muzzle of the gun was in contact with the victim’s clothes. The nature and size of the entry wound, the bullet’s trajectory, the crush-type injuries to the back and the piece of bullet lodged in the back all indicated that the victim was lying on the ground when the shot was fired. Dr.

Hunter, who performed the autopsy, determined that the smaller wound was inflicted first, and that the larger “contact” wound was inflicted shortly thereafter. Either wound would have been fatal. 2. The Defense The defense called several witnesses to show that a person other than defendant was seen leaving the scene after the shooting. Hubert Joubert, who lived across the street from Trudy’s Market, testified that he saw a Mexican male wearing some sort of checkered jacket walking away from the scene shortly after the shooting.

When this individual was a block away he “took off running." Joubert also stated that he saw two cars driving away from the scene on Mission Boulevard. Lori James, who also lived near the market, stated that she heard two gunshots and saw two men running from the scene; one of them had on a white T-shirt; she did not see the other because he had entered a yellow Pacer. The man in the T-shirt entered the passenger side of the car. Charles Dickey, who was driving his tow truck on Mission Boulevard, observed a Pacer similar to defendant’s but with a different license plate.

Defendant also called several deputy sheriffs who spoke with Trudy Allessie shortly after the crimes; defendant attempted to impeach Mrs. Allessie’s trial testimony with prior inconsistent statements as to precisely when and where she heard the two shots, and the manner in which the robber took her purse. Defendant also called two expert witnesses. David Duncan testified that the lack of damage to the bullet recovered from the victim’s back indicated that it had been fired while the victim was standing, rather than lying on the ground.

Jules Slaick testified as to various distances at the crime scene and the location of light fixtures. Defendant did not testify at the guilt phase of trial. B. Penalty Phase Evidence The prosecution presented evidence of defendant’s prior violent conduct in connection with a 1982 burglary conviction. The victim of the burglary, Tira Deno, recounted the circumstances of the crime. Defendant stipulated that he pled guilty to burglary with use of a deadly weapon. In mitigation, defendant testified in his own behalf, denying that he shot and killed Sam Allessie.

Six members of defendant’s family also testified as to defendant’s poor relationship with his father, his participation in Little League and school plays, and his close and loving relationships with his siblings, wife and children. Defendant’s aunt claimed that the actual killer was another member of the family defendant was seeking to protect. II. Discussion A. Guilt Phase Claims 1. Alleged Marsden Error Defendant contends the trial court failed to conduct a proper inquiry when defendant asserted a conflict with the public defender and erred in denying defendant’s request to appoint a private attorney.

The law governing this area is well settled. “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” (People v.

Crandell (1988) 46 Cal.3d 833, 854 [251 Cal.Rptr. 227, 760 P.2d 423]; see also People v. Marsden (1970) 2 Cal.3d 118, 124-125 [84 Cal.Rptr. 156, 465 P.2d 44].) Defendant complained about his representation by the public defender’s office on three occasions. The first occurred on June 17, 1985, after the preliminary hearing but prior to arraignment on the information. At an in camera hearing out of the presence of the prosecutor, defendant expressed dissatisfaction with the fact that he had been represented by three different deputy public defenders.

Defendant requested a new attorney, preferably one outside of the public defender’s office, apparently in the hope that this would entitle him to a new preliminary hearing. The trial court expressed sympathy with defendant’s frustration over the change of attorneys but explained that it did not provide a legal basis for the appointment of private counsel; the court further explained that a substitution of attorneys would not entitle defendant to a new preliminary hearing. The court also assured defendant that it was familiar with the three deputies and that each was competent and well qualified.

After a short recess, defendant was arraigned and agreed to waive time for trial. The record thus discloses that defendant did not assert either incompetence of counsel or irreconcilable differences with the public defender at the first in-chambers conference. Accordingly, there was no abuse of discretion in denying the request for substitution of counsel. (People v. Moore (1988) 47 Cal.3d 63, 76 [252 Cal.Rptr. 494, 762 P.2d 1218].) The second in camera hearing was convened on April 11, 1986, to inquire into an earlier statement by defendant that he was not “comfortable” with his attorney.

Defendant indicated that he did not “trust” his attorney because the latter had “lied” to him. When pressed by the court to elaborate, however, defendant was unable to describe any specific lies by counsel or any circumstances where he had been misled. Defendant also indicated that he was dissatisfied with counsel because the latter wanted him to take a “deal” which he was unwilling to take. Again, however, defendant was unable or unwilling to elaborate. The court reminded defendant that one week earlier he had asked both attorneys, outside of defendant’s presence, if a disposition was possible.

Although counsel indicated that defendant would not plead guilty to first degree murder and the prosecutor stated that he would not accept anything less than life without possibility of parole, the court nevertheless directed counsel to convey the offer to defendant. After a short time, counsel returned to inform the court that defendant would not accept the plea. The trial court asked defendant if this explanation had helped to “jog” his memory. Defendant responded that “it wasn’t all clear like that” when counsel had spoken to him.

Nevertheless, defendant remained adamant that he did not trust his attorney, and complained about counsel’s performance at pretrial motions. Counsel, in response, stated that he had consulted sufficiently with defendant in preparing the case, had adequately investigated the facts and law and was prepared for trial. He acknowledged, however, that defendant did appear to distrust him, explaining that defendant had discouraged his brothers from cooperating with the investigation because he feared counsel would disclose the results to the district attorney.

Counsel indicated that he had said and done nothing to cause defendant to distrust him. The trial court assured defendant that there was no connection between the public defender’s office and the district attorney, and observed that his attorney had done an “exemplary” job at pretrial motions. Finally, the court asked defendant if he had any other reasons for seeking other counsel.

Defendant responded, “I just want another attorney.” The court thereupon found there was no basis to conclude that counsel was not providing effective assistance or that a breakdown in the attorney-client relationship had occurred such that defendant’s right to effective assistance would be substantially impaired. The record amply supports the trial court’s findings.

As outlined above, the court carefully inquired into defendant’s reasons for requesting substitution of counsel, which proved to be either groundless or patently insufficient to demonstrate “such an irreconcilable conflict that ineffective representation [was] likely to result.” (People v. Crandell, supra, 46 Cal.3d at p. 854; People v. Moore, supra, 47 Cal.3d at p. 76.) Finally, defendant was accorded a third in camera hearing shortly after the guilty verdicts were rendered and before the commencement of the penalty phase.

The purpose of the hearing, according to counsel, was to express defendant’s continuing objection to representation by the public defender.

Although defendant was not displeased with his attorney’s performance and had cooperated fully throughout the guilt phase, he did not feel “comfortable” because the public defender’s office “worked for the same employer as the District Attorney’s office.” Counsel also noted that he had differed with defendant over trial strategy; while counsel had originally advised defendant to admit participation in the crime and direct his defense to the special circumstance, defendant was disposed to deny participation altogether. Ultimately, defendant’s views prevailed.

Counsel also advised the court that he anticipated another potential conflict at the penalty phase; contrary to the advice of counsel, defendant did not wish to call members of his family as witnesses “because he feels that they have suffered enough.” When asked if he had anything to add to his attorney’s statement, defendant simply reiterated his displeasure at the fact that he had been represented by different deputy public defenders; he added that he did not desire to change attorneys.

Thus, the record of proceedings at the third in-chambers hearing discloses neither a request for substitution of counsel, nor any credible evidence of a lack of diligent representation or a breakdown in the attorney-client relationship. The record utterly fails to support defendant’s repeated claims that a lack of “trust” between himself and counsel impaired his representation. On the contrary, counsel apparently deferred to defendant’s preferred strategy at the guilt phase, and defendant ultimately followed counsel’s advice to call family members at the penalty phase.

Accordingly, we find no basis for concluding that the trial court either failed to conduct a proper Marsden inquiry or abused its discretion in declining to substitute counsel. (People v. Silva (1988) 45 Cal.3d 604, 622 [247 Cal.Rptr. 573, 754 P.2d 1070].) 2. Prosecutorial Misconduct Defendant next argues that the prosecutor committed prejudicial misconduct at several points during voir dire and closing argument. a. Voir Dire (

i) The Adversarial Process Both attorneys commented on the nature of the adversarial process during voir dire.

Defense counsel analogized the upcoming trial to a “game” and observed that each side was seeking essentially the same goal, “each of us is trying to win for our team . . . .” The prosecutor, in response, emphasized that his role was not “strict[ly] adversarial,” that his “client” was the people of the state and that he was thereby obligated to ensure that “people receive fair trials” and not simply “convict those charged with crimes and throw justice and equity out the door.” To illustrate the point, the prosecutor noted that he had “an obligation ethically in seeking justice to make sure [defense counsel] knows about all the witnesses I intend to call, what they are going to say, what they saw, all of those things. [][] This isn’t just a game . . . .” By way of contrast, the prosecutor observed that defense counsel “has no obligation under our system of justice to reciprocate, to tell me where they’re going or what they may do or who they may call.” He is “an adversary,” the prosecutor explained, “pure and simple.” “He must represent his client and his sole obligation within certain ethical grounds is to obtain an acquittal for his client.” Defendant now contends that the prosecutor’s remarks “grossly distorted” the adversarial process, impugned the ethics of defense counsel and improperly used the prestige of his office to bolster the state’s case.

As the People correctly observe, however, defendant failed to object to any of the prosecutor’s remarks, thereby waiving his present objections. “It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Benson (1990) 52 Cal.3d 754, 794 [276 Cal.Rptr. 827, 802 P.2d 330]; see also People v. Ratliff (1986) 41 Cal.3d 675, 690-691 [224 Cal.Rptr. 705, 715 P.2d 665]; People v.

Green (1980) 27 Cal.3d 1, 27 [164 Cal.Rptr. 1, 609 P.2d 468].) Furthermore, the prosecutor’s statements were not objectionable on the grounds asserted by defendant. It is not a distortion but a simple fact that the prosecutor “ ‘is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ ” (People v.

Superior Court (Greer) (1977) 19 Cal.3d 255, 266 [137 Cal.Rptr. 476, 561 P.2d 1164], quoting Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321, 55 S.Ct. 629]; accord People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 746 [218 Cal.Rptr. 24, 705 P.2d 347].) The prosecutor was also factually correct in noting that discovery in the criminal context was not a two-way street; the prosecution’s disclosure obligations were not reciprocated by the defense. (In re Misener (1985) 38 Cal.3d 543 [213 Cal.Rptr. 569, 698 P.2d 637]; but see Izazaga v.

Superior Court (1991) 54 Cal.3d 356 [285 Cal.Rptr. 231, 815 P.2d 304].) Nor do we believe the jury could reasonably have interpreted the remarks as impugning the ethics of defense counsel, or as an improper attempt to bolster the state’s case. (ii) Right to Remain Silent Another area of discussion at voir dire concerned defendant’s right not to testify. In emphasizing that defendant’s silence could not be used against him, defense counsel observed that there might be plausible reasons why defendant, although innocent, would choose not to take the witness stand.

Later, the prosecutor also stated that defendant had a right to remain silent and explained, “you can’t hold that against the defendant. You can’t consider that.” Recalling defense counsel’s remark as to why an innocent person might not testify, the prosecutor further observed that “there might be reasons why a guilty man doesn’t want to take the stand also and testify.” However, he then repeated his admonishment not to “even think about this ....

It would be totally inappropriate for you to think about . . . this and try to guess about why somebody does [not testify].” Shortly thereafter, defense counsel, out of the presence of the jury panel, expressed concern about the prosecutor’s remarks and requested an admonition relating to defendant’s right to remain silent. The trial court declined the request, explaining that it had already admonished each juror on the burden of proof and defendant’s right not to testify, and believed that the subject had been adequately covered.

Defendant now contends the prosecutor’s remark prejudicially urged the jury to consider defendant’s silence as evidence of his guilt. While it may have been ill-considered to state that a guilty person may have reasons not to testify just as an innocent person might, we do not believe the prosecutor’s statement could reasonably have been construed as urging the jury to consider defendant’s silence as evidence of guilt. Indeed, as noted, the prosecutor followed this remark with a further admonition not to consider the matter.

Accordingly, we discern no possibility that the statement subjected defendant to prejudice. (People v. Warren (1988) 45 Cal.3d 471, 480 [247 Cal.Rptr. 172, 754 P.2d 218].) (iii) Hypothetical Scenario Defendant next contends the prosecutor improperly influenced prospective jurors to “prejudge” guilt.

It is, of course, well settled that the examination of prospective jurors should not be used “ ‘to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.’ ” (People v. Williams (1981) 29 Cal.3d 392, 408 [174 Cal.Rptr. 317, 628 P.2d 869], quoting Rousseau v.

West Coast House Movers (1967) 256 Cal.App.2d 878, 882 [64 Cal.Rptr. 655].) The prosecutor posed a hypothetical scenario to the jury panel and asked for individual responses. Essentially, he asked the jurors to state whether they would be able to vote guilty if, after deliberations, they were persuaded that the charges had been proved beyond a reasonable doubt. Defense counsel objected on the ground that he did not understand the question. The trial court overruled the objection, finding that the question was clear and that the jurors were able to understand it.

Thereafter, the prosecutor explained to the jurors that he was “not trying to bias you or trying to get you to believe [defendant] is already guilty . . . .” Rather, he explained, he posed the question simply because some people have difficulty voting guilty regardless of the evidence. Defendant failed to object to the hypothetical question on the ground now asserted on appeal; thus his objection is waived. (People v.

Ratliff, supra, 41 Cal.3d at p. 691.) Moreover, we discern no impermissible attempt by the prosecutor, in the guise of the hypothetical scenario, to influence prospective jurors to vote guilty; nor do we perceive any possibility that such influence occurred. (iv) Hold-out Jurors Defendant also contends the prosecutor impermissibly “indoctrinated” prospective jurors about the “impropriety” of hold-out jurors.

Defendant refers to a series of remarks by the prosecutor in which he observed that each juror must “come to your own conclusion,” but also stressed the value of “work[ing] together to try to discover the truth.” Defendant failed to object to any of the prosecutor’s remarks, thereby waiving his present objections. (People v. Ratliff, supra, 41 Cal.3d at p. 690.) Moreover, we have reviewed the prosecutor’s statements and discern no reasonable possibility that they misled prospective jurors concerning their responsibility to exercise independent judgment. b.

Argument Defendant also raises several instances of alleged prejudicial misconduct during the prosecutor’s closing argument. (

i) Vouching The prosecutor concluded his guilt phase argument as follows: “The evidence and the facts in this case, ladies and gentlemen, I submit to you are very clear. This is an outstanding murder case.

It was an outstanding murder investigation. [*}[] When you look at all of the evidence in this case and you do your own analysis . . . , thinking back over the witnesses that have testified and their credibility, and then match that with the law that covers the crimes that this defendant is charged with, you, too, will see very clearly and very obviously that the defendant is guilty . . . .” Defendant contends the prosecutor’s characterization of the case and the murder investigation as “outstanding” placed the personal reputation of the prosecutor and his office behind the prosecution.

Impermissible “vouching” may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony. (People v. Heishman (1988) 45 Cal.3d 147, 195 [246 Cal.Rptr. 673, 753 P.2d 629]; U.S. v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1473.) Defendant failed to object to the prosecutor’s remarks, and thereby waived his objection on appeal. (People v.

Ratliff, supra, 41 Cal.3d at p. 690.) Moreover, we do not believe that the prosecutor’s remarks, viewed singly or in context, could reasonably have been interpreted as a personal endorsement of the state’s witnesses. Indeed, the remark was followed immediately by an admonition to the jurors to “do your own analysis” of the evidence and then “match that with the law.” (Italics added.) Accordingly, we discern no impropriety. (ii) Appealing to Jury’s Prejudices Defendant next asserts the prosecutor attempted to arouse the jury’s prejudices by implying that defendant was a gang member with a criminal record.

He cites the prosecutor’s reference during argument to the fact that Fontana Police Detective Moore had “known [defendant] for all of the years he’s worked in Fontana.” Moore’s testimony that he had recognized defendant from having previously seen him at a little market in Fontana was corroborative of Robert Gonzales’s recollection of having seen defendant at Trudy’s Market several months before the murder. Thus, the prosecutor’s reference to Detective Moore’s testimony was simply to establish that defendant frequented the area of the crime scene prior to the murder.

At no point did the prosecutor suggest, either expressly or impliedly, that defendant had a prior record. The alleged reference to a gang affiliation occurred earlier in the trial, during defense counsel’s cross-examination of Mrs. Allessie. The witness acknowledged that she had not observed any tattoos on the robber. Defense counsel thereupon had defendant show the jury the tattoos on his arms.

The prosecutor responded: “Your honor, I would also be willing to stipulate that counsel could have [defendant] describe to the jury the significance of each of the tattoos and describe them for the record.” Defense counsel objected on the grounds of relevance and the matter was dropped. Later, the jury was instructed: “At one point a comment was made regarding the significance of [defendant’s] tattoos. There is no evidence before you regarding any significance of these tattoos except on the issue of eye witness identification.

You are not to speculate on any other significance of these tattoos.” We conclude, therefore, that any possible harm caused by the prosecutor’s brief remark was cured by the court’s admonition, which the jury presumably obeyed. (People v. Rosoto (1962) 58 Cal.2d 304, 326 [23 Cal.Rptr. 779; 373 P.2d 867].) (iii) Attack on Defense Counsel Defendant contends the prosecutor made a number of statements during his rebuttal argument attacking the personal integrity of defense counsel.

It is, of course, improper for the prosecutor “to imply that defense counsel has fabricated evidence or otherwise to portray defense counsel as the villain in the case. . . . Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.” (People v. Thompson (1988) 45 Cal.3d 86, 112 [246 Cal.Rptr. 245, 753 P.2d 37].) We note at the outset that defendant failed to object to any of the statements in question, thereby waiving his right to object on appeal. (People v.

Ratliff, supra, 41 Cal.3d at p. 690; People v. Bell (1989) 49 Cal.3d 502, 538-539 [262 Cal.Rptr. 1, 778 P.2d 129].) Nevertheless, we have reviewed each of the statements in question and find that, with one exception, they did not cross the line of acceptable argument, which is traditionally vigorous and therefore accorded wide latitude. (People v. Bell, supra, 49 Cal.3d at p. 539; People v. Thompson, supra, 45 Cal.3d at pp. 112-113.) In one instance the prosecutor’s statement appears to have been clearly intended as a personal rebuke to defense counsel.

Counsel had suggested that many of the state’s witnesses altered their testimony to please the prosecution. At the same time, counsel stressed that he was not suggesting the prosecutor “put the witnesses up to this.” In rebuttal, the prosecutor stated: “I don’t know if you are offended, I can tell you that I am certainly offended at what I would consider the duplicity of the argument. [Defense counsel] has spent the last three hours saying that all of the witnesses got together and that the sheriff and myself have coached them and molded them . . . to come to court to say these things.

And then [defense counsel] actually has the gall to just before sitting down say: Now, folks, I don’t mean to in any way affirm—or infer (sic) that [the prosecutor] has done anything inappropriate.” Although the statement was somewhat ad hominem, we perceive no realistic likelihood that it prejudiced defendant. (iv) Failure to Testify Finally, defendant asserts that the prosecutor made improper reference to defendant’s failure to testify. (Griffin v.

California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229].) In rebuttal argument, the prosecutor urged the jury to reject counsel’s assertion that the special circumstance had not been proved beyond a reasonable doubt, stating: “Again, the defense is asking you to do something; and that is, find that particular charge is not true. But they’re giving you no evidence on which to do that.” (Italics added.) As the People correctly observe, defendant failed to object to the statement, thereby waiving his present objection. (People v.

Ratliff, supra, 41 Cal.3d at p. 690.) Moreover, the Griffin rule does not extend to remarks, such as those here, which merely comment “on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.” (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal.Rptr. 652, 623 P.2d 213]; People v. Ratliff, supra, 41 Cal.3d at p. 691.) Accordingly, we find no constitutional violation. 3. Serological Evidence Defendant challenges the trial court’s decision to admit an expert’s electrophoretic analysis of dried bloodstains found in his car.

Based on that analysis, the expert concluded that the bloodstains could not have come from defendant, but could have come from the victim. Defendant also challenges the expert’s reference to population frequency statistics which excluded defendant, but included the victim, as the source of the bloodstains. Defendant contends the prosecution failed to meet the standard criteria of reliability under Kelly/Frye: (1) general acceptance in the relevant scientific community; (2) testimony by properly qualified experts; and (3) the application of correct scientific procedures in the case under review. (People v.

Kelly (1976) 17 Cal.3d 24, 30 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013, 1014 [54 App.D.C. 46].) We have recently held that electrophoretic testing of dried bloodstains is sufficiently accepted in the scientific community to be admissible under the first prong of Kelly/Frye. (People v. Morris (1991) 53 Cal.3d 152, 207 [279 Cal.Rptr. 720, 807 P.2d 949]; People v. Cooper (1991) 53 Cal.3d 771, 812 [281 Cal.Rptr. 90, 809 P.2d 865].) Nothing in the instant record impels us to reconsider our rulings.

Defendant also asserts that the particular method of testing utilized in this case, the multisystem method, has not achieved general acceptance in the scientific community. As we recently observed, however, once electrophoresis is deemed to be admissible, criticism of any particular methodology goes to the weight of the evidence, not to its admissibility. (People v. Cooper, supra, 53 Cal.3d at pp. 812-813.) Moreover, the cases have uniformly held that the multisystem method of analysis enjoys general acceptance within the scientific community under Kelly/Frye standards. (People v.

Smith, supra, 215 Cal.App.3d at p. 26; People v. Morris (1988) 199 Cal.App.3d 377, 384-390 [245 Cal.Rptr. 52].) Defendant cites no persuasive evidence to the contrary. As to the second prong of Kelly/Frye, defense counsel raised no challenge, either at the evidentiary hearing or at trial, to the qualifications of the Department of Justice criminalist who testified in this case, Faye Springer, and asserts no specific challenge to her qualifications on appeal.

With respect to the third prong, counsel expressly stipulated at the evidentiary hearing that Springer had used correct and appropriate scientific procedures in the analysis of the blood samples. Counsel further stipulated that Edward Blake, a recognized expert in the field, had reviewed Springer’s notes of her analysis of the blood samples and had agreed that appropriate scientific procedures were followed in this case. Thus, defendant has waived any objection on appeal. (People v. Carrera (1989) 49 Cal.3d 291, 323-324 [261 Cal.Rptr. 348, 777 P.2d 121]; People v.

Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048].) In any event, defendant has not demonstrated any deficiency in the testing procedures, or any act or omission which might have affected the reliability of the results in this case. For the first time on appeal, defendant also attacks the electrophoresis evidence as hearsay (Evid. Code, §§ 801, 1200) and irrelevant (Evid. Code, §§ 210, 350), and further asserts that the evidence was more prejudicial than probative. (Evid.

Code, § 352.) Defendant’s failure to raise any of these objections at trial constitutes a waiver of his objections on appeal. (People v. Carrera, supra, 49 Cal.3d at pp. 323, 324.) Finally, defendant claims the court erred in admitting Ms. Springer’s testimony that, based on population frequency statistics, only one-half of 1 percent of California’s general population had the victim’s blood type. Defendant failed to object to the admissibility of this testimony at trial, thereby waiving his objection on appeal. (People v. Rogers, supra, 21 Cal.3d at p. 548.) Moreover, the contention is unavailing.

As we explained in People v. Brown (1985) 40 Cal.3d 512 [230 Cal.Rptr. 834, 726 P.2d 516]: “[B]oth California and the majority of other jurisdictions have traditionally admitted statistical blood-group evidence of this kind in criminal cases, even where it simply includes the accused within the class of possible donors. [Citations.]” (Id. at p. 536, fn. 6; see also People v. Yorba (1989) 209 Cal.App.3d 1017, 1026-1027 [257 Cal.Rptr. 641] [electorphoresis evidence admissible to show that markers in bloodstain are found in 4.6 to 14 percent of the population]; People v.

Morris, supra, 199 Cal.App.3d at p. 391 [trial court properly admitted electrophoretic evidence that 3.5 percent of the population of Ventura County could have deposited bloodstain].) Defendant also cites People v. Collins (1968) 68 Cal.2d 319 [66 Cal.Rptr. 497, 438 P.2d 33, 36 A.L.R.3d 1176], for the proposition that statistical evidence may mislead a jury by suggesting a mathematical probability of guilt. The reliance is misplaced.

In Collins, the prosecutor called a mathematics instructor to testify that, based on eyewitness descriptions, there was one chance in twelve million that any couple possessed the physical characteristics of defendants. (Id. at p. 325.) We reversed, concluding that the expert’s deduction was not based on statistical data derived from scientific research, but on statistical theory unsupported by any evidence. (Id. at p. 327.) The same flaws were not present here. The trial court did not abuse its discretion in admitting the population frequency statistics. 4.

The Motion to Suppress Defendant contends the trial court erroneously denied a motion to suppress certain evidence, including his wallet and its contents ($650), seized from his girlfriend’s purse. The trial court found that defendant lacked standing to contest the search, that the search was reasonable under the circumstances, and that it was conducted pursuant to a valid parole search waiver. Defendant challenges each of the trial court’s findings.

The evidence presented at the suppression hearing revealed the following: Two days after the shooting, defendant was stopped in his yellow AMC Pacer and placed under arrest. Defendant’s girlfriend, Laura Fierro, and her young child were passengers in the car. An officer on the scene requested that she come to the police station to speak with detectives there. She agreed to do so and was driven to the station by one of the officers, who recalled that in addition to the child she had a large purse in her possession. After a short wait at the station, Fierro was interviewed by Sergeant Turley.

Because she was not in custody or considered a suspect, he did not read her the Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) Ms. Fierro’s three-year-old child, Detective Bowen and a deputy district attorney were also present during the interview. At the conclusion of the conversation, Laura Fierro asked to use the women’s restroom. Bowen pointed out where the restroom was located, and Fierro picked up her purse and started to leave.

Because it was large enough to contain a handgun and the murder weapon had not been recovered, Bowen became concerned that the purse might contain a weapon. Accordingly, he asked her if he could search the purse. She responded, “Go—yes, you may.” The first thing Bowen noticed inside the purse was a pair of brown gloves. Bowen asked whose they were and Fierro responded, “Those are David’s gloves. His wallet is in my purse also.” Bowen asked if he could remove the gloves and wallet and Fierro assented. Bowen continued to search for a weapon but found none.

Then, aware that defendant was on parole and subject to parole search terms, Bowen opened the wallet and found defendant’s driver’s license and $650 in cash. Based on the foregoing, we conclude that the evidence amply supports a finding that Laura Fierro voluntarily consented to the search. (People v. James (1977) 19 Cal.3d 99, 106 [137 Cal.Rptr. 447, 561 P.2d 1135].) She displayed no hesitation in providing her permission when Detective Bowen asked if he could search the purse for weapons.

Moreover, contrary to defendant’s claim, there is no evidence of any coercion, compulsion or express or implied assertion of police authority which might have vitiated the consent. Nor was there any illegal detention or need for Miranda warnings. The evidence indicates that Ms. Fierro accompanied the police to the station voluntarily, and voluntarily cooperated with their investigation. She was not a suspect, and was not under arrest or subject to any physical constraint. There is no evidence that she refused to talk to the officers or voiced a desire to leave at any point.

The interview was conducted in a large, open office rather than an interview room, and Ms. Fierro’s child was present throughout the interview. Substantial evidence, therefore, demonstrates that the warrantless search of Ms. Fierro’s purse was conducted pursuant to a legally valid consent. The subsequent search of defendant’s wallet after it was removed from Laura Fierro’s purse was also valid pursuant to defendant’s parole search condition. The day before defendant’s arrest, Sergeant Turley contacted Lee Kano, defendant’s parole agent, and informed him that defendant was a suspect in a murder.

Kano immediately put a parole hold on defendant. The next day, IXirley relayed additional information to Kano linking defendant to the murder and robbery; the new information confirmed that fingerprints found on the victim’s truck belonged to defendant, and that a car seen by several witnesses matched the description of defendant’s yellow Pacer. Based on this information, Kano told Turley that “he was free to go anywhere,” i.e., “to search his car, his home, anything” pursuant to defendant’s parole search condition.

The foregoing was more than adequate to give rise to a reasonable suspicion that defendant was involved in criminal conduct, and therefore amply justified the parole agent’s decision to authorize the search. (People v. Burgener (1986) 41 Cal.3d 505, 536 [224 Cal.Rptr. 112, 714 P.2d 1251].) Defendant also asserts that the purpose of a criminal investigation cannot justify the invocation of parole terms. On the contrary, the fact “[t]hat the search was conducted by law enforcement officers for a law enforcement purpose is irrelevant. . . .

The law enforcement purpose of the police who seek authorization from the parole agent for a warrantless search, and the parole supervision purpose of the agent who gives that authorization are indistinguishable.” (Id. at p. 536; accord People v. Johnson (1988) 47 Cal.3d 576, 594-595 [253 Cal.Rptr. 710, 764 P.2d 1087].) Therefore we conclude that the search was reasonable under the Fourth Amendment. The motion to suppress was properly denied. 5.

Shackling of Defendant at the Preliminary Hearing At the preliminary hearing, defense counsel noted that defendant was dressed in jail garb, that he was handcuffed and that his feet were shackled. Counsel’s request that the handcuffs and shackles be removed was summarily denied. Defendant raised the shackling issue in a subsequent

section 995 motion to dismiss, which was also denied. Defendant now asserts that the court erred in refusing to have the shackles removed, and that the error prejudicially tainted the witnesses’ identification of defendant as the perpetrator. It is, of course, well settled that during a trial “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290-291, fn. omitted [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1]; accord People v.

Cox (1991) 53 Cal.3d 618, 651 [280 Cal.Rptr. 692, 809 P.2d 351]; People v. Stankewitz (1990) 51 Cal.3d 72, 94-95 [270 Cal.Rptr. 817, 793 P.2d 23].) We have not previously addressed the question whether the restrictions on the use of physical restraints at trial should apply at a preliminary hearing. One decision of the Court of Appeal has reasoned that the policies which underlie such restrictions have application to other proceedings as well. (Solomon v. Superior Court (1981) 122 Cal.App.3d 532, 536 [177 Cal.Rptr. 1].) We agree. As early as 1871, we noted in People v.

Harrington (1871) 42 Cal. 165, the common law rule that a prisoner “brought into the presence of a Court for trial . . . was entitled to appear free of all manner of shackles or bonds . . . .” (Id. at p. 167.) As we explained: “[A]ny order or action of the Court which, without evident necessity, imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense . . . .” (Id. at p. 168.) The common law rule was also recognized by the California Legislature with the enactment in 1872 of

section 688.

That section, as amended, provides: “No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.” Thus, it was recognized early on that the use of shackles in court could prejudically affect the rights of the defendant, not just because of the impact they might have on the jury, but because of their unsettling effect on the defendant and consequently “his constitutional rights of defense.” (Harrington, supra, 42 Cal. at p. 168.) More reccently, the United States Supreme Court has observed that “use of this [shackling] technique is itself something of an affront to the very dignity and decorum of judicial proceedings . . . .” (Illinois v.

Allen (1970) 397 U.S. 337, 344 [25 L.Ed.2d 353, 359, 90 S.Ct. 1057].) We reaffirmed our adherence to the Harrington rule, (supra, 42 Cal. 165) in the seminal case of People v.

Duran, supra, 16 Cal.3d 282, where we stated: “We believe that possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand, all support our continued adherence to the Harrington rule.” (Id. at p. 290.) Although we have not previously considered the use of restraints in a preliminary hearing, the reasoning of Harrington and Duran leave no doubt that the same principles would apply in that setting.

As we have noted, the Harrington rule of “evident necessity” serves not merely to insulate the jury from prejudice, but to maintain the composure and dignity of the individual accused, and to preserve respect for the judicial system as a whole; these are paramount values to be preserved irrespective of whether a jury is present during the proceeding. Moreover, the unjustified use of restraints could, in a real sense, impair the ability of the defendant to communicate effectively with counsel (People v. Harrington, supra, 42 Cal. at p. 168), or influence witnesses at the preliminary hearing.

Accordingly, we hold that, as at trial, shackling should not be employed at a preliminary hearing absent some showing of necessity for their use. Nevertheless, while the dangers of unwarranted shackling at the preliminary hearing are real, they are not as substantial as those presented during trial. Therefore, a lesser showing than that required at trial is appropriate. No reasons for the shackling of defendant appear in the instant record. The trial court, as noted earlier, simply denied counsel’s objection to the handcuffs and leg restraints without further inquiry.

Therefore, we must conclude that it was an abuse of discretion to shackle defendant. (People v. Duran, supra, 16 Cal.3d at p. 293.) The error does not, however, compel reversal. “[Ijrregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v.

Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].) As noted earlier, defendant claims that the physical restraints may have tainted the eyewitness identifications of defendant at the preliminary hearing. Only one witness, Trudy Allessie, positively identified defendant as the assailant. The record of the preliminary hearing, however, does not reveal whether she actually observed the restraints. Her testimony at trial suggests that she did not. On cross-examination, defense counsel asked Mrs. Allessie whether she recalled how defendant was dressed at the preliminary hearing.

She responded, “I think he had orange overalls on.” Counsel continued: “And he was handcuffed and shackled at the preliminary hearing, wasn’t he?” She responded: “I don’t know.” Furthermore, even assuming that Mrs. Allessie was aware of the shackles, she had previously identified defendant at both a photographic and a live line-up. There is no claim that either of these identifications was suggestive. Thus, the record refutes defendant’s claim that the identification at the preliminary hearing was suggested by defendant’s prison garb and shackles.

Accordingly, we conclude that the error was not prejudicial to defendant. 6. Hearsay Statements Defendant next contends the trial court committed prejudicial error in admitting evidence of Trudy Allessie’s statements to the police under the prior inconsistent statement exception to the hearsay rule. We disagree. At trial, Mrs. Allessie was positive that she heard two shots fired after defendant left with her purse, but was uncertain about when the two shots occurred. Initially, she testified, “I know I heard one [shot] as he [i.e., defendant] went around the back of the truck.

That’s all I know.” She then stated that she heard the first shot while she was still sitting in the truck. She could not be sure when she heard the second shot. The prosecutor then introduced Mrs. Allessie’s prior statements to Sergeant Turley and Deputy Sheriff McManus. McManus was the first officer at the scene and spoke with Mrs. Allessie within an hour after the shooting. Mrs. Allessie told him that several seconds after the suspect ran off, as she was leaving the truck, she heard two shots, “a pop followed by a louder pop.” Hurley also interviewed Mrs. Allessie following the shooting.

She told Turley that she heard the shots after she had exited the truck.

Section 1235 of the Evidence Code makes admissible the prior inconsistent statement of a witness not only to impeach credibility but also to prove the truth of the matters stated. (Clifton v. Ulis (1976) 17 Cal.3d 99, 103-104 [130 Cal.Rptr. 155, 549 P.2d 1251]; People v. Green (1971) 3 Cal.3d 981, 985 [92 Cal.Rptr. 494,479 P.2d 998].) However, because Mrs. Allessie could not remember when she heard the second shot, defendant contends that her prior statements were not “inconsistent” with her testimony, and therefore should not have been admitted into evidence.

Generally it is true that the testimony of a witness indicating that he or she does not remember an event is not inconsistent with a prior statement describing the event. (People v. Sam (1969) 71 Cal.2d 194, 208-210 [77 Cal.Rptr. 804,454 P.2d 700].) “But justice will not be promoted by a ritualistic invocation of this rule of evidence. Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.” (People v. Green, supra, 3 Cal.3d at p. 988; accord Clifton v.

Ulis, supra, 17 Cal.3d at p. 104.) Mrs. Allessie’s testimony at trial that she was still inside the truck when she heard the first shot directly contradicted her earlier statements to the police that she was outside and walking toward the rear of the truck when the first shot rang out. Her contemporaneous statements suggested a longer period of time between defendant’s departure and the first shot, which rebutted defendant’s claim that although he might have been at the scene, he could not have shot the victim because he was still at the truck.

Moreover, although she could not remember at trial when the second shot occurred, it was not error to admit the prior statements indicating that she heard two shots in rapid succession. “. . . Sam stands for no more than the proposition that ‘prior statements are not admissible to impeach a witness whose answers to questions are exclusively of the “I-don’t-remember” variety.’ ” (Clifton v. Ulis, supra, 17 Cal.3d at p. 104, original italics.) Viewed as a whole, Mrs. Allessie’s trial testimony was inconsistent “in effect.” (People v.

Green, supra, 3 Cal.3d at p. 988.) Accordingly, the trial court did not err in admitting the prior statements. Defendant also claims that admitting the prior statements violated his right of confrontation as guaranteed by the Sixth Amendment. It is settled that admission of a witness’s prior inconsistent statement to prove the truth of the matters asserted therein does not violate the confrontation clause provided that the statement was made by the declarant in testifying at the preliminary hearing, or the declarant testifies at trial. (California v.

Green (1970) 399 U.S. 149, 158-159 [26 L.Ed.2d 489, 497, 90 S.Ct. 1930]; People v. Bynum (1971) 4 Cal.3d 589, 603 [94 Cal.Rptr. 241, 483 P.2d 1193].) Here, Mrs. Allessie testified at trial and was subject to full cross-examination. Hence, there was no violation of the confrontation clause. 7. Photographs Defendant contends he was prejudiced by the improper admission of several photographs of the victim and the crime scene taken shortly after the shooting. He asserts that the photographs were irrelevant, inflammatory and cumulative. We disagree.

The prosecution’s theory at trial was that the killing was either perpetrated during the course of a robbery or was wilful, deliberate and premeditated. The photographs depicting the placement and nature of the wounds and powder burns clearly supported the prosecution’s claim that defendant first shot the victim while the two were facing each other, and fired a second shot from close range into the victim’s chest while the latter was lying helpless and prostrate on the ground. As we recently observed in People v.

Turner (1990) 50 Cal.3d 668 [268 Cal Rptr. 706, 789 P.2d 887]: “The prosecution was not obliged to prove these details solely from the testimony of live witnesses, and the jury was entitled to see how the physical details of the scene and body supported the prosecution theory . . . .” (Id. at p. 706; accord People v. Kelly (1990) 51 Cal.3d 931, 963 [275 Cal.Rptr. 160, 800 P.2d 516]; People v. Melton (1988) 44 Cal.3d 713, 741 [244 Cal.Rptr. 867, 750 P.2d 741].) Nor was the probative value of the photographs outweighed by their prejudicial effect.

Although “ ‘murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant’ ” (People v. Pierce (1979) 24 Cal.3d 199, 211 [155 Cal.Rptr. 657, 595 P.2d 91]), we have independently reviewed the photographs in question and conclude that they were not unduly gruesome or inflammatory. (People v. Kelly, supra, 51 Cal.3d at p. 963; People v. Turner, supra, 50 Cal.3d at p. 706.) 8. Limiting of Defense Experts Defendant contends the trial court erred in ruling on the qualifications of two proposed defense experts in crime reconstruction and autopsy procedures.

As explained below, the court’s rulings were correct. The prosecution attempted to portray the murder as a particularly vicious, execution-style slaying. The theory was based on the eyewitness testimony of Carol DiCenso, who observed the assailant fire two shots, the first while the victim was standing, the second while the victim was lying on the ground. Ms. DiCenso’s account of the murder was corroborated by the testimony of Dr. Hunter, a pathologist who performed the autopsy on the victim. Dr.

Hunter stated that the second bullet did not exit the victim’s back but rather struck a hard, flat surface, i.e., the pavement. He further testified that the second bullet caused an “epithelial crush injury,” which further indicated that the victim’s back was pressed against a hard surface.

To rebut the foregoing testimony and demonstrate that the two shots were fired rapidly while the victim was still standing, the defense attempted to qualify David Duncan, a retired deputy sheriff, as “an expert in ballistics, firearms, examination of physical evidence and crime reconstruction based on physical evidence.” Defendant also sought to qualify Jules Slaick, a licensed private investigator, as a crime scene reconstruction and ballistics expert. At the prosecutor’s request, the trial court conducted an Evidence Code

section 402 hearing to explore the nature of the proposed testimony and determine whether either witness was qualified as an expert. At the hearing, Duncan testified that the absence of “mushrooming” damage on the nose of the bullet showed it had not hit a hard, flat surface but rather a bone within the body cavity. Duncan also stated that the autopsy procedures may have skewed the evidence of the bullet’s trajectory, and that a crush-type wound would have shown more discoloration than that found on the victim’s back.

Duncan’s opinion was premised on his review of the autopsy records and his examination of the bullet. On cross-examination, Duncan acknowledged that he had no training or background in pathology and had never previously testified as an expert in that field; he had never examined a bullet wound microscopically, conducted tests to determine the effects of a bullet on the human body or removed a bullet from a human body.

Nor did he know the meaning of the term “epithelial crush injury.” The trial court allowed Duncan to testify as a ballistics expert based on his previous experience examining spent projectiles, but determined that Duncan was not qualified to give medical testimony concerning the nature of the victim’s injuries or the trajectory pattern of the bullet. Although one need not necessarily be a licensed physician to give a medical opinion (People v.

Villareal (1985) 173 Cal.App.3d 1136, 1142 [219 Cal.Rptr. 371]), here it is evident that Duncan was totally deficient in the requisite background, training or experience to state an opinion on the nature or cause of the victim’s wounds. The trial court plainly did not abuse its discretion in limiting Duncan’s testimony to ballistic evidence. (People v. Chavez (1985) 39 Cal.3d 823, 828 [218 Cal.Rptr. 49, 705 P.2d 372].) Defendant also attempted to qualify Jules Slaick, a licensed private investigator, as an expert in ballistics and crime scene reconstruction.

Slaick proposed to testify that, based on his observations of the physical evidence, he believed the victim was standing or lunging forward when both shots were fired. He disagreed with Dr. Hunter’s conclusion that the crush-type injuries to the victim’s back where the bullet tried to exit were caused by a hard surface. Slaick acknowledged that he had no training in pathology and had never attended an autopsy. Slaick’s experience in accident reconstruction was based on his military service 20 years earlier, when he took photographs of plane and car crashes.

He had never photographed a crime scene involving a gunshot death. His opinion regarding the effect of the bullets on the victim’s body was based on his viewing of documentary films of men in combat. His purported ballistics expertise was based on his own reading and experience with guns; he had no formal training in ballistics and was not familiar with the term “epithelial crush injury.” The trial court found that Slaick had not demonstrated an expertise in either crime reconstruction or ballistics, and limited his testimony to his observations of the crime scene. The court’s ruling was plainly correct.

By Ms own admission, Slaick had no background, experience or training in pathology or ballistics. There was no abuse of discretion. (People v. Chavez, supra, 39 Cal.3d at p. 828.) 9. Firearm Enhancement Defendant next contends that the gun use finding (§ 12022.5) should be stricken as to count 3, the robbery of Trudy Allessie, because there was no showing that defendant displayed or personally used a gun in the commission of the robbery. To recall, the evidence showed that defendant appeared at the passenger side of the victim’s truck and demanded money from the victim’s wife, Trudy Allessie. Mrs.

Allessie opened her purse and handed defendant a bundle of currency. Defendant then grabbed the purse and ran toward the rear of the truck. Moments later, a passing motorist, Carol DiCenso, observed an individual dressed like defendant point a gun at the murder victim, Sam Allessie. She heard a shot and saw a gun blast. The victim slumped to Ms knees and fell over. DiCenso observed the assailant straddle the victim’s body, aim and fire another shot into the victim. After the second shot, the shooter bent over and reached underneath the body of the victim.

He then stood up and ran toward a car wMch had its lights on and was parked in the lot of a nearby cafe. Shortly before the incident, Mrs. Allessie observed Sam check Ms wallet, wMch he habitually kept in Ms rear pants pocket. It is undisputed that Ms. Allessie did not see defendant display a gun when he robbed her. Nevertheless, the prosecutor argued that defendant’s use of a gun, moments later, to rob and murder her husband, Sam Allessie, facilitated the robbery of Trudy by preventing Sam from pursuing or identifying defendant.

The prosecutor argued, and the jury was instructed, that a robbery is not complete until the perpetrator has reached a place of temporary safety. Accordingly, the prosecutor argued, and the jury found, that defendant personally used a firearm “in the commission” of the robbery of Trudy. (§ 12022.5, subd. (a).) In construing the words of a statute, a reviewing court is required to read the statute in the light of the legislative objective sought to be acMeved, and the evil to be averted. (People v.

Woodhead (1987) 43 Cal.3d 1002, 1008 [239 Cal.Rptr. 656, 741 P.2d 154].) The intent of the Legislature in enacting the firearm use enhancement of

section 12022.5 was “to deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use.” (People v. White (1976) 16 Cal.3d 791, 795 [129 Cal.Rptr. 769, 549 P.2d 537]; accord People v.

Chambers (1972) 7 Cal.3d 666, 672 [102 Cal.Rptr. 776, 498 P.2d 1024].) In light of the legislative purpose to discourage the use of firearms, it would appear to be immaterial whether the gun use occurred during the actual talcing or against the actual victim, so long as it occurred “in the commission” of the robbery. (§ 12022.5, subd. (a).) “[I]t is settled that the crime of robbery is not confined to the act of taking property from victims.

The nature of the crime is such that a robber’s escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety.” (People v. Carroll (1970) 1 Cal.3d 581, 585 [83 Cal.Rptr. 176, 463 P.2d 400]; accord People v.

Milan (1973) 9 Cal.3d 185, 195 [107 Cal.Rptr. 68, 507 P.2d 956].) Moreover, the traditional “escape rule” has been applied to define the duration of robbery in the context of numerous statutes defining the ancillary consequences of robbery. (See, e.g., People v. Salas (1972) 7 Cal.3d 812, 823-824 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832] [felony murder]; People v. Laursen (1972) 8 Cal.3d 192 [104 Cal.Rptr. 425, 501 P.2d 1145] [kidnapping committed during escape from robbery is kidnapping “to commit robbery” under

section 209]; People v. Carroll, supra, 1 Cal.3d 581 [injury inflicted on a robbery victim after the taking and asportation but during the robber’s escape is “in the course of commission of the robbery” for purposes of the great bodily injury enhancement of former

section 213].) Carroll, supra, 1 Cal.3d 581, and Laursen, supra, 8 Cal.3d 192, are particularly noteworthy for our purposes here. The former involved an enhancement statute (great bodily injury “in the course of commission of the robbery”) which, like the gun use enhancement of

section 12022.5, was plainly intended to deter conduct which increased the risk of physical injury to the victim of a felony. Similarly, in Laursen, supra, 8 Cal.3d 192, “we recognized that the escape rule served public policy because the primary purpose of the kidnapping-to-commit-robbery statute is to impose harsher criminal sanctions to deter activity that substantially increases the risk of harm.” (People v.

Cooper (1991) 53 Cal.3d 1158, 1167-1168 [282 Cal.Rptr. 450, 811 P.2d 742].) Applying these principles to the case at bar, we conclude that the facts are sufficient to support a finding that defendant personally used a firearm in the commission of the robbery of Trudy Allessie. As the prosecutor argued, the jury could reasonably have inferred that defendant used the gun against the murder victim to facilitate his escape or to prevent his identification as the robber of Trudy Allessie. The gun use enhancement was properly imposed. B. Special Circumstance Claims 1.

Intent to Kill Defendant claims that the jury was not properly instructed as to the requisite intent in connection with the special circumstance allegation. The Attorney General responds that any error is harmless under People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306], which overruled Carlos v.

Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], in holding that intent to kill must be charged and proved for a felony-murder special circumstance only where the defendant was an aider and abettor to the homicide and not the actual killer. (43 Cal.3d at pp. 1138-1147.) Here the evidence showed, and the jury expressly found, that defendant actually fired the shots which killed the victim.

To be sure, we have held that retroactive application of Anderson to pr e-Carlos crimes does not violate due process because the statute was “ambiguous” and provided ample “pre-Carlos foreseeability of a holding that such intent is not required for the actual killer.” (People v. Poggi (1988) 45 Cal.3d 306, 326-327 [246 Cal.Rptr. 886, 753 P.2d 1082]; People v. Whitt (1990) 51 Cal.3d 620, 637-638 [274 Cal.Rptr. 252, 798 P.2d 849].) However, defendant’s crimes were committed in the four-year “window” period between Carlos and Anderson.

Retroactive application of Anderson in these circumstances would deprive defendant of a defense against imposition of the death penalty which the law at the time of the crime plainly permitted. (People v. Duncan (1991) 53 Cal.3d 955, 973 [281 Cal.Rptr. 273, 810 P.2d 131]; In re Baert (1988) 205 Cal.App.3d 514, 521-522 [252 Cal.Rptr. 418], cert. den. sub nom. California v. Baert (1989) 492 U.S. 918 [106 L.Ed.2d 589,109 S.Ct. 3242].) Thus we must address defendant’s claim on its merits.

Defendant contends that because the jury was separately instructed in connection with the robbery-murder special circumstance that they must find an intent to kill if defendant was an accomplice or an aider and abettor, and was further instructed—at defendant’s request—to determine whether defendant was the actual killer or merely an accomplice, they may have inferred that intent to kill was not a requirement if defendant was the actual killer. The argument lacks merit.

The jury was instructed that the special circumstance allegation required findings that the murder was committed while defendant “was engaged in or was an accomplice in the commission or attempted commission of a robbery . . . ; [and] that the defendant intended to kill a human being or intended to aid another in the killing of a human being.” (Italics added.) In summarizing the special finding forms for the jury, the trial court underscored the intent-to-kill requirement in connection with the special circumstance allegation, making no distinction between liability as the actual killer or as an accomplice: “You are going to be asked to make a finding as to whether or not the special circumstance allegation is true; that is, that the murder was committed during the course of the robbery with the specific intent to kill the alleged victim.” (Italics added.) The prosecutor’s argument reinforced the trial court’s instruction that the jury must find “that defendant intended to kill a human being or intended to aid another in the killing of a human being . . . .” Moreover, defense counsel made clear in his argument that he had requested the special verdict simply to focus the jury’s attention on the intent requirement: “You would want to know in your own mind what you have decided as to who the killer was before you make that special circumstance finding.” Nothing in the argument of counsel suggested to the jury that intent to kill was not a requirement if they found that defendant was the actual killer.

Accordingly, we perceive no reasonable possibility that the jury was misled with respect to the elements of the special circumstance allegation. (People v. Duncan, supra, 53 Cal.3d at p. 974.) 2. Motion for Bifurcated Trials Prior to the commencement of trial, defendant moved to bifurcate trial of the guilt phase and the special circumstance allegation. Relying on People v.

Bigelow (1984) 37 Cal.3d 731 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th], defendant claimed that a separate trial was necessary because his defense that he was not present at the scene of the crimes was inconsistent with his defense to the special circumstance allegation that, although present, he did not have the requisite intent to kill. The trial court denied the motion. The court’s ruling was correct.

The statutory scheme plainly contemplates that, except where the special circumstance alleged is that of a prior murder, the same jury which determines guilt shall also at the same time determine the truth of the special circumstance allegation: “The question of the defendant’s guilt shall first be determined.

If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged . . . except . . . where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.” (§ 190.1, subd. (a), italics added.) Defendant’s reliance on People v. Bigelow, supra, 37 Cal.3d 731, is misplaced.

In that case, one of the special circumstance allegations was murder for the purpose of avoiding arrest or perfecting an escape. (§ 190.2, subd. (a)(5).) At the guilt phase the prosecution presented evidence highly prejudicial to the defendant, indicating that he had committed a dozen uncharged burglaries, robberies and thefts; the prosecution’s primary theory of relevance was that the defendant committed each of the crimes to finance and perpetuate an escape from custody, which was relevant to the special circumstance allegation.

Because of the “highly prejudicial” nature of the prior-crimes evidence, we concluded that the trial court should have conducted a separate trial of the special circumstance allegation. (37 Cal.3d at pp. 747-748.) The facts of the present case are not even remotely similar to those in Bigelow. No evidence was presented to the jury during the guilt phase which could be characterized as so “highly prejudicial” (Bigelow, supra, 37 Cal.3d at p. 748) that the jury’s ability to render a fair and impartial verdict on the special circumstance allegation would be impaired. People v.

Velasquez (1980) 26 Cal.3d 425 [162 Cal.Rptr. 306, 606 P.2d 341], on which defendant relies, is equally inapposite. There we approved the procedure, contemplated by

section 190.1, subdivision (a), of bifurcating the guilt and special circumstance trials where the special circumstance allegation was that of a prior murder. Obviously that was not the case here. Defendant also relies on

section 190.4, subdivision (c), which provides that the same jury which determines guilt shall also consider any plea of not guilty by reason of insanity, the truth of any special circumstance allegation, and the penalty to be applied, “unless for good cause shown the court discharges that jury in which case a new jury shall be drawn.” As noted earlier, however, defendant did not seek to have a new jury empaneled to hear the special circumstance allegation; he sought only to have the trial bifurcated and the issue tried before the same jury. Thus, even if defendant had shown good cause, under the terms of

section 190.4, subdivision (c) (which he did not invoke at trial), he would not have been entitled to the relief requested. C. Penalty Phase Issues 1. Prior-crimes Evidence Defendant contends the trial court erred in permitting the prosecutor to present testimony describing the circumstances of his 1982 burglary and evidence of his conviction of the same offense. Defendant argues that evidence of the 1982 burglary was admissible as either violent criminal activity under

section 190.3, factor (b), or a prior felony conviction pursuant to

section 190.3, factor (c), but not both. We have rejected this claim on numerous occasions. (See People v. Wright (1990) 52 Cal.3d 367, 432 [276 Cal.Rptr. 731, 802 P.2d 221]; People v. Benson, supra, 52 Cal.3d at p. 788; People v. Karis (1988) 46 Cal.3d 612, 640 [250 Cal.Rptr. 659, 758 P.2d 1189]; People v.

Melton, supra, 44 Cal.3d at pp. 764-765.) As we explained recently in Benson: “The People may, of course, seek to prove both the fact of prior felony convictions and any underlying criminal activity involving the use or threat of force or violence.” (52 Cal.3d at pp. 787-788.) Defendant also complains that the trial court erred in admitting evidence of criminal conduct which went beyond the parameters of his 1982 conviction. Defendant was charged with burglary (§ 459), use of a deadly weapon (§ 12022, subd. (b)), infliction of great bodily injury (§ 12022.7) and one count of cruelty to animals (§ 597, subd. (a)).

Pursuant to a plea bargain, he pled guilty to felony burglary and admitted the weapon use, in exchange for which the remaining counts and allegations were dismissed. Testimony at the penalty phase, however, showed that during the course of the burglary defendant assaulted and inflicted serious bodily injury on the victim. We have consistently rejected the contention that evidence relating to prior violent activity is strictly confined to the circumstances demonstrating the prior felony conviction. (See People v. Wright, supra, 52 Cal.3d at p. 432; People v. Melton, supra, 44 Cal.3d at p. 764; People v.

Gates (1987) 43 Cal.3d 1168, 1203 [240 Cal.Rptr. 666, 743 P.2d 301].) As we stated in People v. Robertson (1989) 48 Cal.3d 18 [255 Cal.Rptr. 631, 767 P.2d 1109]: “ ‘When dealing with violent conduct it is not the fact of conviction which is probative in the penalty phase, but rather the conduct of the defendant which gave rise to the offense.’ (Italics in original.) Hence, the statute permits the introduction of all evidence of violent crimes whether or not they resulted in a conviction, except those of which the defendant has been acquitted.” (Id. at p. 47, quoting People v.

Gates, supra, 43 Cal.3d at p. 1203.) Defendant also claims that the court erred in admitting evidence of damage to the burglary victim’s house because it did not demonstrate the presence of criminal activity involving the use of force or violence. (§ 190.3, factor (b).) The contention lacks merit. As we recently explained in People v. Cooper, supra, 53 Cal.3d 771: “[A]ll crimes committed during a continuous course of criminal activity which includes the use of force or violence may be considered in aggravation even if some portions thereof, in isolation, may be nonviolent.” (Id. at p. 841.) Relying on People v.

Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396], defendant next contends that admitting evidence relating to the dismissed counts violated the terms of the plea bargain. We have rejected the identical contention in prior decisions. (See People v. Heishman, supra, 45 Cal.3d at p. 193; People v. Taylor (1990) 52 Cal.3d 719, 743 [276 Cal.Rptr. 391, 801 P.2d 1142].) Defendant further asserts that use of the evidence relating to the prior offenses placed him in double jeopardy. The contention lacks merit.

In presenting testimony relating to defendant’s use of force or violence, the prosecutor was not relitigating the prior acts for purposes of obtaining a new conviction but rather for their relevance as an aggravating factor. We have held that principles of double jeopardy have no application under these circumstances. (People v.

McDowell (1988) 46 Cal.3d 551, 568 [250 Cal.Rptr. 530, 758 P.2d 1060] [“Defendant was not placed twice in jeopardy for the same offense; rather, evidence of the offense was admitted to assist the jury in its determination of the appropriate sentence.”].) Defendant’s claim that “relitigation” of the 1982 burglary as part of the penalty phase violated his right to speedy trial is similarly without merit. (Ibid.) Finally, defendant asserts that admitting the evidence of the circumstances underlying the prior conviction violated his rights to due process of law (U.S. Const., Amends.

V, XIV), equal protection of the laws (id., Amend. XIV), freedom from an impermissible risk of arbitrary and capricious decisionmaking (id., Amends. VIII, XIV), and reliable penalty determination (ibid.). We have previously rejected each of these claims. As we stated in People v.

Benson, supra, 52 Cal.3d 754: “We are not persuaded that the admission of such evidence—in this particular case or generally— affects, in any constitutionally significant way, the fairness of the proceedings, the treatment of ‘similarly situated’ defendants, the risk of arbitrary and capricious decisionmaking, or the reliability of the outcome. [Citations.]” (Id. at p. 789.) Defendant was not denied his right to due process and a fair trial. 2. Prosecutorial Misconduct At the guilt phase of trial the prosecutor called defendant’s wife, Laura Fierro, as a witness.

In front of the jury, she invoked her privilege against self-incrimination. The prosecutor elected not to proceed with the examination. Thereafter, during cross-examination of Laura Fierro at the penalty phase, the prosecutor asked her whether she had lied to the police to protect defendant. Defendant now claims that the prosecutor, with knowledge of Laura Fierro’s intention not to testify, committed misconduct by forcing her to claim a testimonial privilege in front of the jury. The result, he asserts, was to impeach unfairly her credibility as a witness at the penalty phase.

Defendant also argues that the prosecutor’s cross-examination of Ms. Fierro was abusive and constituted misconduct. Neither contention is persuasive. To be sure, a prosecutor may not make “a conscious and flagrant at

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