THE PEOPLE, Plaintiff and Respondent, v. RICARDO RENE SANDERS, Defendant and Appellant, 11 Cal. 4th 475

Opinion MOSK, J. This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190 et seq.). On March 18, 1981, the District Attorney of Los Angeles County filed an information against defendant Ricardo Rene Sanders and Carletha Stewart and Franklin Freeman, Jr., in the superior court of that county, in connection with the robbery murders that became known as the “Bob’s Big Boy murders.” Defendant was charged with the murder of David Burrell, Dita Agtani, and Ahmad Mushuk. (Pen.

Code, § 187.) It was alleged for death eligibility, as to each murder, that he did so under the special circumstances of multiple murder (id., § 190.2, subd. (a)(3)) and felony-murder robbery (id., § 190.2, subd. (a)(17)(i)). He was also charged with robbery (Pen. Code, § 211), attempted robbery (Pen. Code, §§664, 211), and assault with a deadly weapon. (Pen.

Code, § 245, subd. (a).) It was further alleged that, during the commission of each of these offenses, he personally used a firearm, to wit, a shotgun, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and that, as to certain of these offenses, he intentionally inflicted great bodily injury within the meaning of Penal Code

section 12022.7. Finally, he was charged with conspiracy to commit robbery. (Pen. Code, §§ 182, 211.) Defendant pleaded not guilty to the charges and denied the allegations. On December 7, 1981, after the death of victim Cesario Luna, the charge that defendant committed assault with a deadly weapon against Luna was dismissed and the district attorney filed a separate information, charging him with the murder of Luna (Pen. Code, § 187), under the special circumstances of multiple murder (id., § 190.2, subd. (a)(3)) and felony-murder robbery (id., § 190.2, subd. (a)(17)(i)).

It was also alleged that, during the commission of the murder, he personally used a firearm, to wit, a shotgun, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). The count was ordered consolidated into the previously filed case. Defendant again pleaded not guilty to the charges and denied the allegations. Motions he made for change of venue were denied. His case was severed from that of his codefendants. Trial was by jury.

The panel returned verdicts finding defendant guilty as charged of the murders of Burrell, Agtani, Mushuk, and Luna; it also rendered a finding of true on the multiple-murder and felony-murder-robbery special circumstances. It found him guilty as charged of the counts of robbery, attempted robbery, and assault with a deadly weapon. It further found true the allegations that, as to all but one count, he personally used a firearm. Finally, it found him guilty of conspiracy. The jury subsequently returned verdicts of death on the counts of murder.

The trial court denied defendant’s application to modify the verdicts. (Pen. Code, § 190.4, subd. (e).) It imposed sentences of death for the murders of David Burrell, Dita Agtani, Ahmad Mushuk, and also for the murder of Cesario Luna with the sentence of death. For the noncapital offenses, it imposed a total term of 13 years and 8 months to life in state prison, which it stayed, pending execution of the sentence of death. (Pen. Code, § 654.) As we shall explain, we conclude that the judgment should be affirmed. I. Facts A. Guilt Phase The People introduced evidence to the following effect.

In August 1980, Bruce Woods was riding in a car on La Cienega Boulevard in Los Angeles with a man named Connie and a woman called “Collie,” whom he identified as Carletha Stewart. “Collie” asked if they wanted to make some money by robbing Bob’s Big Boy, one of a chain of fast-food restaurants with that name. Connie replied “Are you crazy?” and the subject was dropped. Jerry Lankford learned of a possible robbery of Bob’s Big Boy in September 1980. One evening in September, as Lankford was standing on a street comer with friends, defendant drove up in a blue Cadillac. He parked and approached the group.

He talked about “taking down” the Bob’s Big Boy. Lankford, who worked at a Bob’s Big Boy, told defendant that the robbery was not a good idea because there were probably off-duty police officers working there. Defendant disagreed, saying that he was “screwing” a waitress who had “cased” the restaurant. He then walked over to his car and opened the trunk, in which Lankford saw the stock of a shotgun wrapped in a blanket and shotgun shells. In September 1980, Brenda Givens was employed as a waitress at Bob’s Big Boy restaurant on La Cienega Boulevard.

On September 27, 1980, while visiting her boyfriend at the Los Angeles County jail, she saw Stewart with defendant and Franklin Freeman, Jr. Stewart said: “Good thing I seen you . . . [bjecause they gonna rob Bob’s Big Boy tonight, and I don’t want you hurt.” That evening, Givens told two managers at Bob’s Big Boy about the planned robbery. One of them, Rodell Mitchell, called the police. That evening, because of an apparently unrelated incident, the area was monitored by police from that time until 1 a.m. About 10 p.m., Andre Gilcrest was at Stewart’s home.

She told him that “Frank and Ricky”—Franklin Freeman, Jr., and defendant—were planning to rob Bob’s Big Boy that night and that she had told them how many managers worked at the restaurant, what time they closed, and where the money was kept. Between 11:30 p.m. and 12:30 a.m., Gilcrest and Stewart went to the Bob’s Big Boy, where Stewart spoke to two waitresses and made a telephone call. They then returned to Stewart’s home.

Later that evening, Stewart called Givens at the Bob’s Big Boy from her home and asked how long it would be until she “g[o]t out of there.” She also asked how many employees were still inside the restaurant. Stewart also called Freeman. She told Gilcrest that Freeman and defendant would pick her up for the robbery. Defendant drove up to Stewart’s residence 20 minutes later with Freeman in the passenger seat. Gilcrest saw that defendant had a sawed-off shotgun; Freeman also had a shotgun. After defendant and Freeman left, Stewart explained that they planned to drive to the Bob’s Big Boy.

When defendant and Freeman did not return after about an hour, Stewart went to the restaurant and knocked on the front door, but the manager did not let her in. After she returned home, she received a phone call from defendant explaining that they did not commit the robbery because the manager did not come out. On December 13, 1980, about 9 p.m., Franklin’s mother, Orasteen Freeman, saw Stewart, defendant, and two others at her home. A few hours later, at 2 a.m. on December 14, 1980, there were nine employees and two customers inside the Bob’s Big Boy on La Cienega Boulevard. The restaurant doors were locked.

The night manager was Michael Malloy. The cook was Derwin Logan; the waitresses were Dionne Alicia Irvin, Evelyn Jackson, Rhonda Robinson, and Dita Agtani; the busboys were Cesario Luna and his son Ismael Luna; the cashier was Ahmad Mushuk. The customers were David Burrell and Tami Ellen Rogoway. Malloy was in the office preparing to count the money from the cash register when Logan told him that the two remaining customers wanted to be let out. Malloy left the office and handed the keys to the restaurant door to Logan. Logan walked to the front door with Burrell and Rogoway.

When Logan opened the door, defendant and another man, both armed with shotguns, forced Logan, Burrell, and Rogoway back into the restaurant. Defendant said, “It’s a jack. It’s a stickup.” He took the keys from Logan. The cashier came forward and asked: “Hey, what’s going on?” The man with defendant stepped forward and hit Mushuk on the head with the butt of his shotgun; Mushuk fell to the floor. Irvin, Jackson, Agtani, Robinson, and Cesario Luna, who were at the counter area, were ordered to lie facedown on the floor.

A few minutes later they were led to the kitchen area and again ordered to lie down on the floor. Defendant took Malloy, Logan, Burrell, and Rogoway to the back of the restaurant and ordered them to lie facedown on the floor of the hallway outside the freezer. While they were on the floor, they heard the men checking the lunchroom, restroom, and lockers. Defendant asked for the manager. Malloy stood up. Defendant walked him over to an electrical panel and asked, “Where’s the alarm?” Malloy pointed to the alarm. Defendant handed Malloy the keys and ordered him to open the door to the office.

Inside the office, he asked: “Where’s the safe?” Malloy pointed to the safe. After defendant ordered him to give him the money in the safe, Malloy placed approximately $1,300 in a box and slid it out the door. Some of the coins were wrapped in Bank of America coin wrappers. Defendant told everyone to “get up off the floor. . . . We are going to the back. You’re going to get hurt.” Malloy, Logan, Burrell, and Rogoway stood up and went into the freezer, which other employees already occupied. Mushuk was lying on the floor unconscious.

Defendant said: “I want watches, wallets and jewelry.” Malloy gathered items from everyone in the freezer, except Mushuk, in a bucket, which he handed to defendant. No one resisted the gunmen. Some of the people in the freezer cried and pleaded, “Please don’t hurt us”; others prayed out loud. The gunmen ordered everyone to “[t]um around and face the wall” and then to kneel. One of them said, “You’re going to get it first.” Defendant and the other gunman fired into the backs of the group. Jackson stood up and pleaded: “Don’t hurt me.

Don’t hurt me.” One of the gunmen ordered her to turn around; when she complied, she was shot and fell to the floor. After the firing stopped, defendant asked, “How many rounds do you have?” The other gunman answered, “None.” The gunmen closed the freezer door. Inside the freezer, people lay piled on top of each other and on the floor. Ismael Luna looked at his father’s body and called out, “Papa, Papa.” He jumped up to get to the door. Malloy tried to restrain him; Luna broke loose and ran from the freezer. When he returned, he said the men were gone.

The bodies of the dead and seriously wounded were pulled out of the freezer. Burrell, Agtani, and Mushuk were dead. Cesario Luna was gravely wounded, and died several months later of complications from a bullet wound to the brain. Malloy was struck in the right eye, which he lost. Rogoway had shotgun injuries to her back and spine, resulting in numbness on her right side and periodic inability to walk. Jackson suffered cranial injury, resulting in permanent impairment of brain function. Irvin received a gunshot wound to the arm. Logan, Ismael Luna, and Robinson were physically unharmed.

Robinson developed psychological problems requiring extensive treatment. On December 17, 1980, Lankford called the police anonymously and told them about the conversation, in September 1980, concerning the plan to rob Bob’s Big Boy. He described defendant and his car. The police subsequently identified Lankford, who provided a written statement. On December 20, 1980, Gilcrest contacted the police and told them what he knew about the crimes. Zola Taylor, who was living with the Gilcrest family, also contacted the police, claiming that she had personal knowledge of meetings among the defendants before the robbery.

Both Gilcrest and Taylor provided written statements to the police. In subsequent investigations, the police discovered a sawed-off shotgun and shotgun shell in the closet of defendant’s bedroom. They found shotgun shells and casings in the bedroom used by defendant’s father. At Stewart’s residence, they found, among other items, $90 in single dollar bills and several rolls of coins in Bank of America wrappings. Defendant was arrested on December 22, 1980. A lineup was held the following day. On March 10, 1981, Woods testified at a preliminary hearing against defendant and Stewart.

Afterwards, as they were transported back to jail in a van defendant told Woods he should not testify against Stewart because she was young and that if they were convicted defendant would get the “gas.” He warned that if Woods ever went back to jail, he or “some of [his] people probably get hurt.” He told him that “they have the address where [Woods] lives, that [Woods’s] family was going to get involved if [he] talked.” Malloy identified defendant at a videotape of the lineup, at the preliminary hearing, and at trial. Rogoway identified defendant at trial and at a videotape" lineup.

Ismael Luna identified defendant at a lineup, at the preliminary hearing, and at trial. Robinson identified defendant at a lineup and at trial.

For his part, defendant called into question the accuracy of the eyewitness identification of him and called into question the physical evidence linking him to the crime, including shotgun and shell casings found in his apartment, which were consistent with those used during the robbery, and the dollar bills and rolls of coins found at the home of Stewart, which were consistent with the money stolen—because the People did not conclusively prove that the weapons were actually used in the Bob’s Big Boy robbery or that the bills and coins found at Stewart’s home were actually taken from the restaurant. B.

Penalty Phase The People presented evidence in aggravation concerning the circumstances of a second degree burglary committed by defendant in 1977 at the home of Dr. Donald Lawrence Cray. It was stipulated that defendant committed the burglary and that he entered a plea of guilty and was sentenced to prison. The victim, Dr. Cray, testified to the following effect. About 11:15 a.m. on February 28, 1977, Dr. Cray, a dentist, returned to his home in Orange County. As he drove up the driveway, he saw a car parked facing down towards the entrance. He thought the car might belong to repairmen.

He entered through the back door. As he came through the kitchen, he saw through the window that there were two men running toward the car from behind the garage. Both carried rifles. Dr. Cray ran out and asked the men what they were doing there. The driver said: “Shoot him. Shoot him.” It appeared that the other man, defendant, was positioning the rifle at him. Dr. Cray ran towards the back of the car to a tree. The men drove off and Dr. Cray noted their license number and telephoned the police.

Inside the house, he found personal property, including a camera and vacuum cleaner, piled up in the middle of the den. Two rifles were missing. The rifles were later discovered by the police, in damaged condition, near Dr. Cray’s home. In mitigation, defendant introduced evidence relating to his background and character. Defendant’s sister, Lisa Gina Sanders, testified that there were six children in the family; defendant was the second oldest. The children lived with both of their parents in a public housing project. Their mother was kind and loving, but stem. She worked and kept the house clean.

She was strict about rules; on one occasion, when defendant and Lisa sneaked out on Halloween to go trick-or-treating, she spanked them. Their mother became ill with leukemia in the mid-1960’s. Defendant helped to cook, clean, and take care of the other children. He and Lisa earned money by selling newspapers and doing yard work and other chores around the neighborhood. After their mother died, “it all just kind of went crazy.” Their father was lax about discipline. The children stayed out late; the house was filthy; their clothes were old and shabby. Lisa and defendant took care of the younger children.

Defendant protected the other children from their older brother, who harassed and bullied them. Defendant taught Lisa how to swim and to ride a bicycle and roller-skated with her. After he was placed in a foster home, he would return to his family home frequently. He was generous to his younger siblings. Lisa testified that she loved her brother and that it was always a pleasure to visit him in jail and to know that she can go and see him. She also testified that it would mean something to her for him to be alive, even if he were locked in prison for the rest of his life.

Shirley Madison testified that she had known defendant since 1968. Defendant’s father did not know how to care for the six children. The house was not clean and was filled with broken appliances he collected. He did not discipline the children strictly. He drank alcohol around the children. Defendant showed no bitterness toward his father. Lisa and defendant lived with Madison as teenagers; Madison eventually became their foster mother. While he lived with her, defendant was respectful and helpful around the house. He helped care for her children and they looked up to him.

She remained in touch with him and received calls from him once or twice a week. She loves him as though he were her own child. Both Lisa Sanders and Madison testified about defendant’s relationship with his child, “Ricky, Jr.,” who was five years old at the time of the trial. Defendant was excited about having a child. He lived with the infant and mother as a family. He did housework and took care of the child. He was firm but gentle with him. He intervened when the mother was too severe in discipline. He would speak to the child sternly, but did not spank or physically discipline him.

Defendant’s brother Adrian Sanders, who was stationed with the Army in Korea, obtained a leave and paid his own way back to testify. During his childhood he looked up to defendant as the provider and protector. Defendant and their other brothers would sometimes steal food to feed the younger children. Defendant gave Adrian money when he needed it and also gave him his first car. When Adrian was overseas with the Army, defendant wrote letters in which he urged Adrian not to get into trouble as he had. He told Adrian to make sure to take care of their father when he returned home and to look after Ricky, Jr.

Adrian looked up to defendant and felt proud of him. He would want to be his friend even if he were not his brother. He loves him very much. Dr. Michael Paul Maloney, a clinical psychologist and associate professor of psychiatry at the University of Southern California School of Medicine, testified that he had examined defendant’s school records and juvenile probation file records. He learned from the files that before defendant’s mother died in 1966, he performed adequately at school.

After her death, when he was in junior high school, his behavior deteriorated; he became difficult to handle and his grades dropped. His record improved after he was placed in foster care, although there was a “negative attitude by the father” toward foster home placement that appeared to affect defendant’s performance at school. His grades deteriorated further after he returned to his father’s home. II. Guilt Issues Defendant raises a number of claims attacking the judgment as to guilt. As will appear, none is meritorious. A.

Motion to Change Venue In August 1981, defendant’s then codefendant Franklin Freeman, Jr., moved for a change of venue; he also moved, in a separate motion, for funds, pursuant to Penal Code

section 987.9, to conduct a jury venire survey. Defendant joined the motion for change of venue only. Both motions were denied. Defendant’s case was subsequently severed from Freeman’s. In March 1982, defendant filed a renewed motion for change of venue based on pretrial publicity, or, in the alternative, a continuance. He did not request funds for a jury venire survey.

The trial court denied the motion without prejudice, observing that defendant “can always renew your motion and the Court would consider it anew.” During voir dire, only one of the venire members who had previously heard about the case stated that she might be influenced by pretrial publicity; she was dismissed for cause.

At that time, the trial court observed: “The record is very clear that we have talked to almost 100 jurors and this is the first one, and you can correct me if you think that I am wrong, but I think this is the first that has indicated that she is so affected by pretrial publicity that her mind is made up. . . .1 think this is the exception that proves the rule that there has not been such persuasive [sz'c] pretrial publicity as to deny this defendant a fair trial in this county.” Defendant did not renew the motion for change of venue.

Defendant contends that the trial court erred in denying the motion for change of venue. He urges that the high percentage of venire members with knowledge of the case, coupled with “the recognition that juror assurances of fairness are of dubious reliability,” demonstrate prejudice. The claim lacks merit. Penal Code

section 1033, in relevant part, provides: “In a criminal action pending in the superior court, the court shall order a change of venue: [<JD (

a) On motion of the defendant, to another county when it appears there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” Of course, a criminal defendant may move for change of venue on the basis of the prejudicial effect of pretrial publicity on the venire. “In passing on such a motion, the trial court looks to the following factors, among others: the nature and gravity of the offense, the size of the community, the status of the defendant, the popularity and prominence of the victim, and of course the nature and extent of the publicity.” (People v.

Bonin (1988) 46 Cal.3d 659, 672 [250 Cal.Rptr. 687, 758 P.2d 1217]; People v. Anderson (1987) 43 Cal.3d 1104, 1130 [240 Cal.Rptr. 585, 742 P.2d 1306].) The trial court must resolve whether, on the peculiar facts of the individual case, there is a reasonable likelihood that the jurors chosen for defendant’s trial have formed such fixed opinions as a result of pretrial publicity that they cannot make the determinations required of them with impartiality. (People v.

Bonin, supra, 46 Cal.3d at pp. 672-673.) Defendant, as the moving party, bears the burden of proof. (Id. at p. 673.) On appeal, we review the trial court’s resolution of factual questions under a deferential substantial evidence standard. (People v. Bonin, supra, 46 Cal.3d at p. 676.) The ultimate question of the reasonable likelihood of a fair and impartial trial is a mixed question of law and fact, which we review under a de novo standard. (Ibid.) We find no error.

Defendant points to the gravity of the crimes and the extensive media coverage, including newspaper and magazine articles, television broadcasts, and even an opening segment of a made-for-television movie depicting a similar incident in a fast-food restaurant. While these factors may weigh in favor of a change of venue, they are not dispositive. Although the crimes were brutal, we have previously upheld denial of change of venue in capital cases involving multiple killings. (See People v.

Bonin, supra, 46 Cal.3d at p. 677.) Furthermore, although there was considerable news coverage immediately after the crimes occurred, much of it in the context of articles concerning a general increase in violent crime in Los Angeles, coverage was substantially reduced by the time defendant renewed his motion 13 months later, in March 1982.

The potentially prejudicial effect of the news coverage must be presumed to have diminished by the beginning of jury selection. (Ibid.) The passage of time weighs heavily against a change of venue. (Id. at p. 678.) Moreover, there were numerous countervailing factors weighing against a change of venue. The crimes and publicity occurred in Los Angeles County, the largest and most populous metropolitan area in the state. As has been frequently emphasized, “ ‘adversities of publicity are considerably offset if trial is conducted in a populous metropolitan area.’ ” (People v.

Harris (1981) 28 Cal.3d 935, 949 [171 Cal.Rptr. 679, 623 P.2d 240] (plur. opn. of Clark, J.).) Furthermore, none of the victims or defendants was prominent in the community at the time of the events. More important, our examination of the record persuades us that pretrial publicity had no actual prejudicial effect. It is not necessary that jurors be entirely ignorant of the facts and issues involved in the case; it is sufficient that they can lay aside their opinions and impressions and render a verdict based on the evidence presented at trial. (People v.

Fauber (1992) 2 Cal.4th 792, 819 [9 Cal.Rptr.2d 24, 831 P.2d 249].) Only one venire member stated that she would be unable to decide the case fairly because of the publicity to which she had been exposed. She was dismissed for cause. We reject defendant’s broad assertion that assurances of fairness by prospective jurors are “inherently untrustworthy.” We cannot discern a reasonable likelihood that the jurors chosen for defendant’s trial had formed such fixed opinions as a result of pretrial publicity that they could not make the determinations required of them with impartiality.

Indeed, at the time the final juror was selected, defendant had not used seven available peremptory challenges and expressed no dissatisfaction with the jury as selected. His failure to exhaust his peremptory challenges strongly indicates that “the jurors were fair and that the defense itself so concluded.” (People v. Balderas (1985) 41 Cal.3d 144, 180 [222 Cal.Rptr. 184, 711 P.2d 480]; People v. Daniels (1991) 52 Cal.3d 815, 853-854 [277 Cal.Rptr. 122, 802 P.2d 906].) Defendant’s additional claim of erroneous denial of his “motion” for Penal Code

section 987.9 funds to conduct a venire survey on the impact of pretrial publicity has not been preserved for review. He did not make such a motion in the first place. The record does not indicate that he joined the motion of his former codefendant, Freeman, under Penal Code

section 987.9. In his subsequent motion for change of venue, although he attached a copy of Freeman’s request for funds as an exhibit and counsel referred at the hearing on the renewed venue motion to denial of the prior request for funds during argument, he did not request funds. Nor does the record reflect that the trial court considered or ruled on that issue. In any event, even assuming defendant had made such a motion and it was denied by the trial court, we find no prejudice.

As we emphasized in rejecting a similar claim: “[Defendant did not exhaust his peremptory challenges or object to the jury as finally composed. We regard such inaction by defense counsel as a tacit acknowledgment that, regardless of community attitudes generally, the jury as finally selected was a fair and impartial body.” (People v. Daniels, supra, 52 Cal.3d at p. 851.) B.

Exclusion of Expert Testimony on Eyewitness Identification Toward the end of the prosecution’s case-in-chief, defendant sought an order to allow psychologist Elizabeth Loftus, Ph.D., to testify in his defense as an expert in the field of eyewitness testimony. In a written offer of proof, he specified that her testimony would be limited to opinions concerning the psychological factors affecting the reliability and accuracy of eyewitness identification.

The People objected to the expert testimony on the grounds that the subject matter was not beyond common experience and that the expert’s opinions had not achieved general acceptance in the scientific community. The court heard an offer of proof at a hearing outside the presence of the jury. Dr.

Loftus expounded her opinion that eyewitness testimony is unreliable because, inter alia, memory can be impaired by extreme stress, memories can be transformed by information received after the event, cross-racial identification is difficult, and confidence about accuracy does not correlate with actual accuracy of identification. The trial court excluded the testimony on several grounds. It ruled, first, that the subject matter of the testimony did not relate to a matter sufficiently beyond common experience that an expert would assist the trier of fact (Evid. Code, § 801, subd. (a)).

Second, it concluded that the evidence did not satisfy the requirements of the Kelly-Frye rule because it had not achieved general acceptance in the scientific community. (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 293 F. 1013 [54 App.D.C. 46, 34 A.L.R. 145]). Third, it determined that because of the time that would be consumed, its probative value was outweighed by its prejudicial effect. Defendant claims error. We review the trial court’s rulings for abuse of discretion. (People v.

McDonald (1984) 37 Cal.3d 351, 376 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].) We find none. In People v. McDonald, supra, 37 Cal.3d 351, we acknowledged that scholarly research had uncovered a set of psychological principles concerning eyewitness identifications that had become widely accepted in the scientific community. We concluded that the Kelly-Frye rule was inapplicable to expert testimony on psychological factors affecting eyewitness identification.

We also observed that the body of information available on psychological factors bearing on eyewitness identification was “ ‘sufficiently beyond common experience’ that in appropriate cases expert opinion thereon could at least ‘assist the trier of fact’ (Evid.

Code, § 801, subd. (a)).” (37 Cal.3d at p. 369, fn. omitted.) We held that, in the appropriate case, exclusion of expert testimony concerning eyewitness identification would constitute error. (37 Cal.3d at p. 377.) We stressed that “[w]hen an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.” (Ibid.) We also emphasized, however, that “the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court’s discretion” and that such evidence “will not often be needed.” (Ibid.) Because McDonald was decided more than two years after defendant’s trial took place, the trial court was not guided by that decision.

Even under McDonald, however, we find no abuse of discretion under the circumstances of this case. In McDonald, no evidence linked the defendant to the crime, apart from eyewitness identification. The eyewitness testimony was equivocal; several witnesses testified that their view of the crime was partially blocked and obscured by rush-hour traffic; one eyewitness asserted that the defendant was definitely not the killer. The defendant also had a strong alibi defense. We concluded that the eyewitness identifications were not corroborated by evidence that would lend them independent reliability.

Here, by contrast, the eyewitness testimony was strong and unequivocal. Three eyewitnesses—Malloy, Robinson, and Luna—positively identified defendant in lineups and at trial; a fourth, Rogoway, was “pretty certain” of her identification of him at a videotape lineup and positively identified him at trial. The events at the Bob’s Big Boy occurred in a lighted interior and the witnesses were in close proximity to the perpetrators. Two of the eyewitnesses, Malloy and Robinson, were Black, as were the gunmen.

Although eyewitness testimony was a key element of the prosecution’s case, here, unlike McDonald, eyewitness testimony was not the only evidence linking the defendant to the crime. The eyewitness identification was corroborated by other independent evidence of the crime and the conspiracy leading to it. Thus, for example, there was evidence that Lankford was approached by defendant in September 1980, who solicited help in “taking down” the Bob’s Big Boy on La Cienega Boulevard.

Givens testified that she saw Stewart in the company of Freeman and defendant in September 1980 and that Stewart had warned her “they” were planning to rob the restaurant. Gilcrest also testified that he was told by codefendant Stewart that defendant and Freeman planned to rob Bob’s Big Boy. Defendant also threatened Bruce Woods, a prosecution witness who had testified against him and Stewart at the preliminary hearing. On the night of the crimes, defendant was seen in the company of Stewart at Freeman’s house a few hours before the robbery.

Two shotguns and live and spent shells located in defendant’s apartment were consistent with those used in the shootings. Other physical evidence included rolled coins and bills found at the home of codefendant Stewart, also consistent with money seized in the robbery. In these circumstances, it was not error to exclude the testimony. In addition, defendant presented no alibi defense.

Under these circumstances, we find no abuse of discretion; we defer to the conclusion of the trial court that the probative value of the testimony in assisting the trier of fact was outweighed by its “prejudicial effect involving the amount of time consumed.” In any event, no prejudice appears; it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the erroneous exclusion. (People v. McDonald, supra, 37 Cal.3d at p. 376; People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) During the course of the trial, counsel extensively cross-examined eyewitnesses concerning the accuracy and reliability of their testimony. In closing argument, she argued at length about the weaknesses and pitfalls of eyewitness identification, including, specifically, problems of cross-racial identification and the effects on memory of stress and of information received after the event.

Furthermore, the trial court instructed the jury to consider several factors in evaluating eyewitness testimony, including the duration of time that the witness had to observe the suspect and the lighting conditions under which such observations were made, the effect of stress on the witness, the similarity or difference in race between the subject and the witness, the degree of certainty of the witness, prior identifications or failure to identify the subject, and the effects of exposure to photographs of the suspects.

In light of the foregoing and the strong identification and other testimony of several independent eyewitnesses, defendant’s lack of an alibi defense, and the extensive corroborating evidence, it is not reasonably probable that a different result would have occurred had the expert been permitted to testify. C. Admission of Excerpts From Manager’s Manual Michael Malloy, the night manager of the Bob’s Big Boy restaurant, offered eyewitness testimony identifying defendant as one of the perpetrators.

In connection with his testimony, the prosecutor sought to question Malloy concerning his familiarity with and attempt to follow procedures listed in the Bob’s Big Boy “Manager’s Manual” in the event of a robbery. He also sought to introduce into evidence two pages of excerpts from the manual, entitled “Hold-Ups and Robberies” and “In the Event of a Robbery.” The materials advised employees to cooperate with, and not resist, a robber, to remain calm, and to study the physical features and clothing of the robber so as to be able to provide an accurate description to the police.

They also contained detailed suggestions concerning how to identify a robber, including the importance of observing height and weight, eye and skin color, voice and accent, clothing, and use of right or left hand. Defendant objected on the grounds that the evidence was hearsay and that it would improperly enhance the witness’s credibility. The prosecution argued that the evidence would corroborate Malloy’s testimony that he was aware of the procedures described in the manual and attempted to follow them during the robbery.

The trial court ruled that Malloy could testify “about the contents of the memorandum and his actions in connection thereto.” It explained that the testimony was relevant to show that the victims did not offer any resistance to the robbers and to show that “a logical pattern of conduct was advised and perhaps followed in observing the persons.” Malloy testified that he was familiar with the contents of the manual; he had read the manual before each of his three managerial promotions, and the two pages were posted on the office bulletin board.

He attempted to follow the procedures during the robbery: he offered no resistance and cooperated with the robbers; he also consciously recalled, and tried to use, the suggestions in the manual about how to identify a robber.

The trial court admitted the excerpts into evidence as an exhibit at the close of the prosecution’s case-in-chief, observing that the two pages from the manual were “documents that the witness said that he studied and tried to comply with, and the jury will be entitled to see exactly what he read and exactly what he was trying to comply with.” Defendant contends that admission of the evidence was error, on three grounds: first, the excerpts from the Manager’s Manual were hearsay (Evid.

Code, § 1200); second, the contents were irrelevant (id.., § 210); third, the evidence was more prejudicial than probative (id., § 352). The evidence was not hearsay; it was not offered for the truth of the matter asserted, but to show what procedures Malloy studied and attempted to follow. Defendant argues that the evidence was at least “implied hearsay” under Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472 [72 Cal.Rptr. 321, 446 P.2d 129]. Dillenbeck concerned the admissibility of a police safety manual as evidence of the due care required by a police officer under particular circumstances.

We held that the manual was admissible as an implied admission of a party opponent, “on the ground that an employee’s failure to follow a safety rule promulgated by his employer, regardless of its substance, serves as evidence of negligence.” (Id. at p. 481.) We noted in dictum, however, that the evidence, if “[introduced for the purpose of particularizing the standard of care” would “theoretically constitute hearsay: an attempt to prove the truth of the matter implicitly asserted—that due care requires certain conduct.” (Id. at p. 478.) The point is inapposite.

The Manager’s Manual was not introduced for the purpose of showing that the procedures established a reliable standard of care to be followed by Bob’s Big Boy employees; nor did admission of the evidence imply that the procedures were reliable. Defendant’s relevance argument also fails. “[T]he trial court is vested with wide discretion in determining relevance.” (People v.

Green (1980) 27 Cal.3d 1, 19 [164 Cal.Rptr. 1, 609 P.2d 468].) Admission of the excerpts fell well within that discretion: they corroborated Malloy’s testimony concerning how he behaved during the robbery and, in particular, that he used specific techniques in his attempt to focus and concentrate on defendant’s appearance so that he could later identify him to the police. Finally, defendant argues that the trial court abused its discretion in admitting the evidence because it was more prejudicial than probative. No objection on this ground was made in the trial court; the point has not been preserved for review.

Even if we construed defendant’s argument to the trial court that the excerpts would improperly enhance the witness’s credibility as an objection under Evidence Code

section 352, which we do not, the claim is unpersuasive. In rejecting defendant’s argument, the trial court did not exercise its discretion “in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316 [228 Cal.Rptr. 197, 721 P.2d 79] .) D. Cross-examination ofRogoway Tami Ellen Rogoway, who appeared as a prosecution witness, was extensively cross-examined concerning her identification of defendant.

Outside the presence of the jury, counsel also sought to cross-examine her on two related points concerning her identification of Freeman. In her offer of proof, counsel described the sequence of Rogoway’s identification testimony at the preliminary hearing. On direct examination, Rogoway initially did not identify Freeman. She remained in the courtroom during the testimony of another witness who identified him. She then approached the prosecutor and said she could now identify him. On further direct examination, she positively identified him in the courtroom.

Counsel also made an offer of proof that Rogoway collaborated with a prison inmate, Richard Quine, to fabricate identification of Freeman, out of her anger and desire to “put him away.” The prosecutor informed the trial court that Rogoway’s sole contact with Quine occurred during a visit to the state prison in Chino with a friend who was visiting Quine. Rogoway met with Quine to tell him that the friend was not permitted to meet with him because she was under 18 years old.

Subsequently, Quine wrote to Rogoway’s friend, telling her to find out everything Rogoway knew about the case, adding that he could “fix it up good so that this guy Freeman gets put away.” In exchange, he wanted conjugal visits with the friend. Rogoway gave the letter to the prosecutor, who turned it over to defense counsel. According to the prosecutor, another informant identified Quine as an unreliable “snitch” who was willing to “sell himself to anyone.” Defendant did not dispute this account of the background facts. The trial court excluded the identification testimony under Evidence Code

section 352, observing: “I will not let you show that she is a bad identifier by showing she may have been wrong about Freeman." In response to argument that the cross-examination was not intended to show that Rogoway identified the wrong person, but to show bias, the trial court remarked: “Her bias and interest in this case is so obvious . . . that she not only lost her boyfriend who was killed, but she suffered very serious and probably permanent injuries herself. [H Of course she has a tremendous bias or interest.

You don’t have to demonstrate that by the evidence.” The trial court added that the evidence would “get[] off in a collateral area” including the “guilt or innocence of Freeman.” As it had earlier explained: “Well, you know my basic position, which is that I hope we can keep away from the question of the identification of Freeman because of the great amount of time and the—and the collateral matters that would be raised. [*]Q We get altogether off the question of the identification of [defendant] as to whether or not he’s involved, and we get off into somebody else.” The trial court ruled that defendant would not be permitted to cross-examine Rogoway about her alleged collaboration with Quine unless he first called Quine as a witness and established a foundation for the claim of fabrication.

It ordered Rogoway to remain available, subject to being recalled for further testimony on these issues. Defendant did not call Quine as a witness or seek to recall Rogoway for cross-examination on this point. Defendant claims the trial court erred on both points. We review these rulings for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655 [7 Cal.Rptr.2d 564, 828 P.2d 705].) With regard to testimony concerning identification of Freeman, no abuse appears.

The trial court did not err in restricting cross-examination on the collateral issue of Rogoway’s identification of Freeman, on the ground that the probative value of such an inquiry—whether to call into question the accuracy of her identification of defendant or to show bias—was outweighed by the prejudice of undue consumption of time and potential confusion of the jury. The trial court also did not abuse its discretion in requiring defendant to establish a foundation regarding alleged collaboration with Quine before cross-examining Rogoway on the collateral issue of fabricating evidence about Freeman.

Evidence Code

section 403, subdivision (a)(4) provides: “(

a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when [cjQ • • ■ [H (4) [t]he proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.” In light of the undisputed background information provided to the court concerning Quine’s questionable reliability and limited contact with Rogoway, the trial court properly required defendant to carry the burden of producing evidence as to the existence of the preliminary fact that Rogoway had indeed collaborated with Quine before permitting cross-examination on that point.

E. Admission of Stewart’s Extrajudicial Statements During the guilt phase, the People sought to introduce statements made in September 1980 by Carletha Stewart to Brenda Givens and Andre Gilcrest, and a statement by Stewart in August 1980 to Bruce Woods. Defendant objected on the grounds that the statements were inadmissible hearsay and that their introduction into evidence would violate the Confrontation Clause under the Sixth and Fourteenth Amendments.

After conducting a hearing to determine the admissibility of the evidence, the trial court ruled that the statements to Givens and Gilcrest were admissible coconspirator declarations under Evidence Code

section 1223. It further ruled that the statement to Woods was admissible for the nonhearsay purpose of showing Stewart’s state of mind. Defendant claims the trial court improperly admitted the statements. For the following reasons, no state law error or constitutional error appears. 1. Statements to Givens Givens testified that she worked as a waitress at Bob’s Big Boy in September and December 1980. She was friendly with Stewart, who had also worked as a waitress at the restaurant.

On September 27, 1980, while visiting her boyfriend in the Los Angeles County jail, she saw Stewart in the visitors area, accompanied by defendant, Freeman, and another woman. Stewart approached Givens and said, “Good thing I seen you today . . . [bjecause they gonna rob Bob’s Big Boy tonight, and I don’t want you hurt.” She told Givens she would be coming to the restaurant around closing time.

Although defendant does not dispute the existence of a conspiracy on September 27, 1980, he argues that the remarks to Givens were inadmissible because they were not made “in furtherance of the objective” of the conspiracy. The point is unpersuasive. “Hearsay statements by coconspirators may . . . be . . . admitted against a party if, at the threshold, the offering party presents ‘independent evidence to establish prima facie the existence of . . . [a] conspiracy.’ . . .

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.’ ” (People v. Hardy (1992) 2 Cal.4th 86, 139 [5 Cal.Rptr.2d 796, 825 P.2d 781]; accord, Evid.

Code, § 1223.) We find no abuse of discretion by the trial court in concluding that Stewart’s statement to Givens was made in order to remove her from the scene of the planned crime so that she would not be an eyewitness and victim of the robbery and would be less likely to be able to establish Stewart’s connection to the robbery.

As the trial court explained: “Carletha, because of her relationship with Givens, either didn’t want her there so she wouldn’t be hurt, which I think is the least likely reason, or that she didn’t want her there because she ran into her in the company of the two persons that were going to commit the robbery.” It further reasoned: “Earlier in the day Miss Stewart, upon seeing a colleague at the county jail and being in the company of Sanders and Freeman, warned that colleague not to go there that night because the place was going to be robbed. [U A natural and logical inference would be that the colleague, having seen her at the jail with these two men, and if she saw those two men robbing that place that night, would tell the police that she saw Stewart earlier in the day with these two men, and Stewart would be immediately connected with the crime; the police would come looking for her.” 2.

Statements to Gilcrest Based on Gilcrest’s prior testimony, at a hearing on a motion to suppress, the People sought to introduce two statements by Stewart.

On September 27, 1980, she told Gilcrest that “Frank and Ricky are going to rob Bob’s Big Boy tonight.” Later that night, after he had accompanied her to the restaurant for coffee, she told him that “they didn’t do it because the manager didn’t come out” and “that they were going to do it the next night, the following night.” The trial court expressly found that the statements by Stewart were made in furtherance of the conspiracy and that there was evidence that defendant was a party to the conspiracy at the time the statements were made.

In admitting the evidence, it explained: “I think there is a viable theory which the court can believe and which in fact I tend to believe, and I do believe it sufficiently for review under

section 402 of the Evidence Code in which the jury could believe. [<JQ And that is that Carletha Stewart wanted to involve Gilcrest in this matter, at least to the point of having an escort and somebody there with her while she was at the restaurant. [<J0 Her presence at the restaurant that night was, obviously, to further the robbery that she expected to happen, and she wanted somebody else with her, and the presence of another man to be with her at that point could have been useful.

Maybe he would participate in the robbery itself, maybe he wouldn’t. [*][] But it’s certainly logical that she could want someone there with her who knew what was going to happen, and that would at least not show any alarm at whatever she might do. . . . [U And to have someone go there and to be aware of what was going on and be cooperative would be of use to her.” As to Stewart’s statement to Gilcrest about why the robbery did not occur that night and her indication that it would happen the next day, the trial court similarly concluded: “I feel that it does tend to further the conspiracy .... to insure his continued cooperation and to prevent his perhaps telling someone about it.” Defendant implausibly argues that Stewart’s statements to Gilcrest were “nothing more” than casual admissions of culpability and speculates that they were not “necessary” in order to further the conspiracy.

The trial court’s conclusion that the statements were made in furtherance of the conspiracy is adequately supported by the record; we find no abuse of discretion. 3. Statement to Woods The People made an offer of proof that Woods would testify that, in August 1980, he rode in a car on La Cienega Boulevard with his friend Connie and a woman named “Collie,” later identified as Stewart. “Collie” asked if he wanted to make some money by robbing a Bob’s Big Boy on La Cienega.

In support, the prosecutor argued that the proffered testimony was linked to, and tended to corroborate, evidence that defendant had solicited someone else, Jerry Lankford, for the same robbery in September. The trial court admitted the testimony: “The testimony will be permitted for the purpose of showing that a conspiracy was either formed or in the process of being formed. [H . . .In other words, it’s not hearsay at all.

It’s not being admitted for the purpose of showing that Bob’s Big Boy was to be robbed, it is merely circumstantial evidence that there was an effort by one member of the alleged conspiracy [Stewart] to form a conspiracy for the purpose of robbing Bob’s Big Boy. [<][] In other words, the very fact that she would request someone to assist with her in the robbery of Bob’s is circumstantial evidence of her state of mind, which is in issue in this case.” Again, no error appears. Under Evidence Code

section 1250, subdivision (a), “. . . [E]vidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [H . . . [U

(2) The evidence is offered to prove or explain acts or conduct of the declarant.” Stewart’s statement was admissible for the nonhearsay purpose of establishing her state of mind in August 1980, i.e., her intention to form a conspiracy to rob Bob’s Big Boy, which was clearly relevant to the issue whether she subsequently entered into a conspiracy with defendant to commit robbery. F. In Camera Review of Gilcrest Interview During cross-examination of Gilcrest, defendant sought to impeach him with statements recorded in an interview of Gilcrest by a defense investigator.

As summarized by the trial court: “[Defense counsel] indicated it was her desire to ask certain questions of the witness without disclosing the transcript or the tape to [the prosecutor]. And then later to call the investigator who would not read the transcript or any tape for the jury, but would merely answer questions not using the tape or the transcript and still not allow the District Attorney access to the transcript or tape recording.” The People objected to the use of any questions asked of the witness based on the tape-recorded statement.

The trial court initially observed: “[T]o permit the defense to take the statement and use only those parts which would favor the defense would be—would give a misleading picture to the jury, but more importantly it would violate

section 356 of the Evidence Code. [*][] My intended ruling is to give the defense the following choice: [QQ Either to refrain from asking Mr. Gilcrest any questions concerning the tape recorded statement, and along with that not asking the defense investigator any questions about the interview or to disclose the tape recording and the transcript to the District Attorney.” Counsel objected to disclosure of the transcript on the ground that it was privileged work product.

She indicated that she was interested in questioning Gilcrest regarding his knowledge of and feelings about the relationship between Stewart, his former girlfriend, and defendant. After further argument, the trial court modified its ruling: “I want to make it very clear what I am offering. First of all, I find 356 applies. And that when you go into part of

an act, declaration, conversation or writing, that the prosecution is entitled to bring out the entire matter surrounding it. . . . [QQ I am offering you the opportunity to tell me what it is you wish to ask in camera, if you wish. [^Q That I will examine the statement in its entirety in camera.

I will decide what sections you must reveal to the District Attorney in order to ask the question that you are interested in. ['JD And then give you the option of either foregoing the questions or submitting to discovery. . . . [1 Or you can reject that entire package and take my ruling as it is.” Counsel objected to the ruling as violating defendant’s state constitutional privilege against self-incrimination and his right to effective representation.

She refused to produce the transcript for in camera review; instead, she did not further cross-examine Gilcrest with express reference to his interview with the investigator. Defendant contends that the trial court erred in ruling as it did under Evidence Code

section 356. He asserts that he could not be required, consistent with his privilege against self-incrimination, pursuant to

article I,

section 15 of the California Constitution, to disclose the interview transcripts as a condition for using their contents to impeach Gilcrest. His argument has merit. Counsel expressly did not seek to have any portion of the recording or transcript entered into evidence. Indeed, she agreed not to read any portion of the transcript: “Well, I won’t read the statement. If that’s the problem, I’ll close the book.

I know what’s in it.” Under these circumstances, although the prosecutor could not be foreclosed from inquiring into the context of the statements on redirect examination of the witness and cross-examination of the investigator, he was not entitled to review any portion of the tape or transcript under Evidence Code

section 356. At the time of trial, moreover, our cases directed that courts should refrain from compelling the disclosure of defense investigative materials, including notes of interviews with witnesses. Thus, in People v. Collie (1981) 30 Cal.3d 43 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776], we emphasized that such disclosure had constitutional implications. In Collie, the prosecution, after learning in the course of cross-examination that a defense witness had spoken previously to a defense investigator, requested discovery of the notes prepared by the investigator.

Defense counsel objected on the basis of work-product doctrine and the attorney-client privilege. The trial court overruled the objections and ordered discovery. We held that, under those circumstances, the trial court erroneously ordered discovery of the witness’s prior statement. (Id. at p. 56.) Similarly, in In re Misener (1985) 38 Cal.3d 543 [213 Cal.Rptr. 569, 698 P.2d 637], defense counsel was held in contempt for refusing to disclose the contents of witness interviews that were requested under Penal Code

section 1102.5, which provided for prosecutorial discovery of statements of any defense witness other than the defendant, after that witness had testified on direct examination. We invalidated the statute, holding that it contravened the state constitutional privilege against self-incrimination. (38 Cal.3d at p. 558.) We have applied the harmless error standard under People v. Watson, supra, 46 Cal.2d 818, 836, to Misener error. (People v.

Wright (1990) 52 Cal.3d 367, 421, fn. 19 [276 Cal.Rptr. 731, 802 P.2d 221].) Even if the trial court erred under then governing precedents, however, the claim fails in the absence of prejudice. Counsel repeatedly stated that she intended to use the transcript of the Gilcrest interview in connection with only a narrowly limited area of inquiry: Gilcrest’s jealousy of Stewart’s relationship with defendant.

The record shows that counsel, in fact, extensively cross-examined Gilcrest about his feelings for Stewart, including his accusation that she lied to him about a tattoo she wore depicting a rose with defendant’s initial on it, as a motive to implicate defendant. No other testimony was affected by the ruling, which applied only to the Gilcrest interview. In addition, there was substantial evidence apart from Gilcrest’s testimony concerning a conspiracy to commit robbery involving Stewart and defendant.

It is not reasonably probable that a result more favorable to defendant would have occurred in the absence of the asserted error. G. Exclusion of Prior Testimony by Zola Taylor Taylor and Gilcrest had both supplied the police with written statements used to obtain search warrants for the homes of defendant, Stewart, and Franklin.

At a pretrial suppression hearing, Gilcrest testified, inter alia, that on September 27, 1980, Stewart told him that defendant and Freeman were planning to rob Bob’s Big Boy, that the two men drove up to Stewart’s house that night with two shotguns in their car, and that he went with Stewart to Bob’s Big Boy.

Taylor testified that Gilcrest told her that the meeting between defendant, Freeman, and Stewart occurred not in September, but around Thanksgiving of 1980, that he had gone to Bob’s Big Boy in December, on either the day before or the actual day of the shootings, and that he had seen the shotguns when defendant and Freeman drove into the restaurant parking lot. During the hearing, the defense established that Taylor had lied to the police by claiming to have personal knowledge of the prerobbery meetings among the defendants; the information she reported to the police came directly from Gilcrest.

At trial, Gilcrest testified as a prosecution witness in conformity with his pretrial testimony. Near the end of his case-in-chief, defendant sought permission to introduce portions of Zola Taylor’s prior testimony at a pretrial suppression hearing for the purpose of impeaching Gilcrest. Defendant contended that Taylor was unavailable (Evid. Code, § 240) and that the testimony fell within the “former testimony” exception to the hearsay rule (id.., § 1291, subd. (a)(2)). After an extensive hearing, held on August 3, 1982, the trial court denied the request.

It found that counsel had not exercised reasonable diligence in procuring Taylor’s attendance at trial, pursuant to Evidence Code

section 240, subdivision (a)(5). It also concluded that because the People did not have a similar interest and motive in questioning Taylor at the suppression hearing, the testimony was not admissible under Evidence Code

section 1291, subdivision (a)(2). Defendant contends the trial court erred. The claim is meritless. 1. Evidence Code

Section 240 Under Evidence Code

section 240, subdivision (a)(5), a witness is “unavailable” if he or she is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” “What constitutes due diligence to secure the presence of a witness depends upon the facts of the individual case. (See People v. Cavazos (1944) 25 Cal.2d 198, 200-201 [153 P.2d 177].) The term is incapable of a mechanical definition.

It has been said that the word ‘diligence’ connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. (People v. Horn (1964) 225 Cal.App.2d 1, 5 [36 Cal.Rptr. 898].) The totality of efforts of the proponent to achieve presence of the witness must be considered by the court. Prior decisions have taken into consideration not only the character of the proponent’s affirmative efforts but such matters as whether he reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena him when he was available (People v.

Banks (1966) 242 Cal.App.2d 373, 377 [51 Cal.Rptr. 398]), whether the search was timely begun, and whether the witness would have been produced if reasonable diligence had been exercised [citation].” (People v. Linder (1971) 5 Cal.3d 342, 346-347 [96 Cal.Rptr. 26, 486 P.2d 1226].) This court has not decided the standard of review for a trial court’s determination on the issue of reasonable diligence. (People v. Price (1991) 1 Cal.4th 324, 424 [3 Cal.Rptr.2d 106, 821 P.2d 610].) In People v. Jackson (1980) 28 Cal.3d 264, 312 [168 Cal.Rptr. 603, 618 P.2d 149], we treated due diligence under Evidence Code

section 240 as a “factual question to be determined by the trial court according to the circumstances in each case,” and its ruling “will not be disturbed unless an abuse of discretion appears.” We subsequently reexamined the standard of review: “Properly considered, due diligence in procuring a witness’s[] attendance appears to be a mixed question of law and fact. . . . [I]n addressing it the court must. . . determine the underlying facts, select the applicable legal standard, and apply the latter to the former. [*][] The proper standard for mixed questions appears to be independent review.” (People v.

Louis (1986) 42 Cal.3d 969, 984 [232 Cal.Rptr. 110, 728 P.2d 180].) The Courts of Appeal are divided on this issue. (See People v. Robinson (1991) 226 Cal.App.3d 1581, 1585 [277 Cal.Rptr. 504].) Under either standard, defendant fails to carry his burden of establishing that he exercised due diligence. The record reveals the following. In December 1981, Taylor was called by the defense as a witness at the suppression hearing. She was not subpoenaed to testify. After the hearing, defense investigator William Robert Stenberg obtained Taylor’s home and work addresses and telephone numbers.

He did not attempt to contact or subpoena her, however, until about July 10, 1982, during Gilcrest’s testimony and several months after the beginning of trial on March 15, 1982. At that time, he telephoned her at work, but learned that she had left her employment in April. He then assigned a process server, Paul Chester Joseph, the task of locating Taylor at her home address. On July 26, 1982, only a few days before the hearing on whether she was “unavailable,” Joseph went to her address. A woman there told him that Taylor was not there, but had been in Gary, Indiana for two weeks.

He returned on July 27; a man told him that Taylor was not there and that he did not know when she would return. On July 28, the same man repeated that she was not there and he still did not know when she would be back. On August 1, Joseph served a subpoena on the man at the address, requiring that he appear on August 2. On that occasion, the man identified himself as Taylor’s husband, Wayn Ellis. Ellis reportedly said he had not seen his wife for two months and did not know where she was living. He also indicated that he would not appear if subpoenaed to do so.

After Joseph reported his lack of success, Stenberg also checked the residence several times. On one occasion, an older woman answered the adjacent door and said, “You just missed him,” but said she did not know Taylor. On July 28, Stenberg talked to Ellis, who said he did not know where Taylor was and “[djidn’t know anything about Gary, Indiana.” Under these circumstances, based on our independent review, we find that defendant did not conduct a diligent good faith search under Evidence Code

section 240, subdivision (a)(5). The defense was well aware, before trial began, of the nature and importance of Gilcrest’s testimony.

It was also aware of inconsistencies between Gilcrest’s testimony at the suppression hearing and Taylor’s; as the trial court observed, “[It] was perfectly obvious by the time that Miss Taylor testified in the suppression hearing that she would controvert the testimony of Gilcrest to some extent.” Nonetheless, it appears that the defense made no effort whatever to subpoena Taylor until well into the trial, during Gilcrest’s testimony, although the defense investigator knew that she “might not be a totally reliable person long ago,” and defense counsel knew Taylor was “known to be uncooperative with and basically not wanting to be approached by the defense.” Even then, belated efforts to locate her were minimal, consisting of a single phone call to her former work number and several visits to her former address.

Attempts to obtain information from Ellis or anyone else at the address were perfunctory; no relatives, friends, or coworkers appear to have been contacted. In sum, the record suggests that the defense was insufficiently diligent in attempting to determine from Taylor’s husband or anyone else where Taylor might be located. 2. Evidence Code

Section 1291 Evidence Code

section 1291, subdivision (a)(2), provides, in relevant part: “(

a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and [*][]... [U [t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” We review the trial court’s ruling under an abuse of discretion standard. (See People v.

King (1969) 269 Cal.App.2d 40, 48 [74 Cal.Rptr. 679].) At issue in the suppression hearing was whether the police officers who obtained the warrant to arrest defendant relied in good faith on information provided by Gilcrest and Taylor concerning a conspiracy among defendant, Stewart, and Franklin.

The People accordingly had little motive to impeach Taylor’s veracity: “[T]he only issue in the eyes of the People at that time was did the police rely upon him [Gilcrest] in an exigent circumstance where time was of the essence and they had to run with what they had. . . . [W]e didn’t care if Zola was lying, ['ll] Did the police have a reason to believe her? That’s the only issue, so probable cause would be issued by a magistrate for the search warrant.” By contrast, at trial, the People would have a strong motive to impeach Taylor.

As the trial court observed, they “might very well want to bring in her own admissions of untruthfulness to attack her testimony.” No abuse appears. The issues at the suppression hearing and at trial were sufficiently distinct that the trial court could reasonably conclude that the People lacked a similar interest and motive to cross-examine Taylor.

As it explained: “The credibility of Gilcrest, as testified to by Taylor at the suppression hearing, was very tangential to my ruling as to the traversal of the search warrant. . . . [T]he tactics of counsel in a suppression hearing or a traversal hearing before a Court where the issues are so different would be far different now than what is presented to this jury. . . . The credibility of Gilcrest was not an issue in the same sense at that hearing as it is in the trial.

His credibility was only relevant to whether or not he had so outrageously lied that the police were negligent or worse in relying upon his statement in getting the search warrant.” Because the People did not have an opportunity to cross-examine Taylor with an “interest and motive similar to” that which they had at trial, the testimony was properly excluded. H.

Prosecutorial Misconduct Defendant contends that the prosecutor engaged in misconduct during guilt phase arguments in summation. “ ‘What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant.’ ” (People v. Clair, supra, 2 Cal.4th at p. 661.) We review prosecutorial remarks to determine whether there is a “reasonable likelihood” that the jury misconstrued or misapplied the prosecutor’s remarks. (Id. at p. 663.) 1.

Reference to Victims In his guilt phase opening argument in summation, the prosecutor observed that he represented the “cold” entity “known as the People of the State of California,” adding: “But I again wish to call your attention to the fact that—that chair I represent also contains the victims, their loved ones.” Defendant objected, but was overruled. Later, the prosecutor explained to the jury why he was seeking conviction on the nonmurder counts: “[H]ow would you feel if you were one of the survivors, and no one came—.” Defendant again interposed an unsuccessful objection.

Defendant asserts that the comments constituted misconduct. In People v.

Stansbury (1993) 4 Cal.4th 1017 [17 Cal.Rptr.2d 174, 846 P.2d 756], we held that the prosecutor improperly appealed to the passions of the jury in urging them to consider the suffering of the victim: “ ‘ Think what she must have been thinking in her last moments of consciousness during the assault. [*][] Think of how she might have begged or pleaded or cried.' ” (Id. at p. 1057, italics in original.) We reiterated the rule that “an appeal for sympathy for the victim is out of place during an objective determination of guilt” but found no prejudice. (Ibid.) Similarly, in People v.

Fields (1983) 35 Cal.3d 329, 361 [197 Cal.Rptr. 803, 673 P.2d 680], we found misconduct, though no prejudice, when the prosecutor unmistakably appealed to the sympathy of the jury, asking them to “ ‘think of yourself as [the victim].’ ” In this case, even if the prosecutor’s brief and relatively bland references to “victims, their loved ones” and “survivors” constituted misconduct, it was similarly not prejudicial. 2. Use of Epithet Also during his opening argument in summation, the prosecutor referred to defendant as “the monster that is sitting before us.” Defendant’s objection was overruled.

He now claims that use of the epithet constituted misconduct. A “prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1251 [278 Cal.Rptr. 640, 805 P.2d 899].) In this case, even assuming that the reference to defendant as a “monster” “exceeded the bounds of “vigorous yet fair argument” (People v.

Sandoval (1992) 4 Cal.4th 155, 180 [14 Cal.Rptr.2d 342, 841 P.2d 862]), no prejudice is shown, in light of the record as a whole. 3. Griffin Error During rebuttal argument in summation the prosecutor referred to the presence in the defendant’s apartment of ammunition and weapons consistent with those used in the robbery. The jury had previously heard testimony that defendant shared a two-bedroom apartment with his father, his father’s girlfriend, his own girlfriend, and his sister.

Referring specifically to defense counsel’s explanation for the presence of a holster in defendant’s father’s closet, the prosecutor argued: “She gets up and argues it could possibly have been a toy gun or a kid could have been using it. . . . And there is no explanation. What I am saying is that if there are certain damning aspects to a case, I would expect that they would be explained away. [<[□ There’s been no explanation as to why he had a 20 gauge sawed-off shotgun.” Defendant objected.

The following discussion took place outside the presence of the jury. “[Defense Counsel]: He is getting closer and closer to the point where the defendant could only be the person to explain these things. “[The Court]: So long as you make it clear the expected testimony could come from somebody else besides the defendant. “[Prosecutor]: What was found in the father’s closet. “[The Court]: Just so it can’t be determined from— “[Defense Counsel]: Just a second.

When he is talking about things that have to do with either the father or the defendant being able to talk about it, I have presented evidence that the father has suffered a stroke which [the prosecutor] knows. And the jury has heard it. [^0 So the only way they could interpret these constant references throughout this whole argument is that the defendant hasn’t proven this, that the defense hasn’t proven that. HO That the defendant himself has something to hide.” “[Prosecutor]: I will stay off of what was in his closet, but I am not conceding she is correct.

F¡[] I just want to avoid it altogether.” “[The Court]: All right.” Immediately thereafter, the prosecutor inexplicably resumed his point before the jury: “So there’s been no explanation as to what the holster was doing in the father’s closet, what the seven and half pellets were doing in the father’s closet.” Defendant’s objection, on the same ground, was overruled. Defendant claims that, through these comments, the prosecutor committed misconduct under Griffin v.

California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]. “In Griffin, the United States Supreme Court held that the privilege against self-incrimination of the Fifth Amendment prohibits any comment on a defendant’s failure to testify at trial that invites or allows the jury to infer guilt therefrom, whether in the form of an instruction by the court or a remark by the prosecution. [Citation.] The prohibition, however, does not extend to . . . such comment on the defense’s failure at trial to introduce evidence that could reasonably have been expected [citation]—save only, of course, the testimony of the defendant himself.” (People v.

Clair, supra, 2 Cal.4th at p. 662.) Defendant’s Griffin claim lacks merit. The prosecutor referred to the absence of evidence, not to defendant’s failure to testify. We are unpersuaded by defendant’s argument that only his own testimony could logically have provided the missing evidence about the items found in his father’s closet.

Other members of the household— including defendant’s sister, his girlfriend, and his father’s girlfriend— shared use of the closets with defendant and his father and might logically have testified concerning the contents of the father’s closet and whether the holster found there was used as a child’s toy. In the context of all the evidence presented, the prosecutor’s comment was not reasonably likely to be misconstrued or misapplied by the jury as referring to defendant’s own failure to testify. 4.

Comment About Opposing Counsel Also during rebuttal argument in summation, the prosecutor referred to defense counsel’s argument and urged: “But I don’t want anyone here to think that somebody can just prance through with a final argument not founded on fact and with phantom issues and hitting and running with phantom issues and hitting and running unsupported by the transcript, steal 13 weeks of a very carefully laid—.” Defendant interposed an objection.

The trial court overruled the objection, remarking: “Counsel, as I have indicated to both of you, the court permits great latitude to counsel in final argument.” Defendant contends that the remarks of the prosecutor constituted misconduct. We are, again, unpersuaded. Contrary to defendant’s assertion, the argument did not amount to improper name calling or suggest fabrication of evidence or other misconduct; it did not cross the “line of acceptable argument, which is traditionally vigorous and therefore accorded wide latitude.” (People v. Fierro (1991) 1 Cal.4th 173, 212 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) I.

Judicial Misconduct Defendant contends that the trial court engaged in repeated acts of misconduct. 1. Examination of Witnesses Defendant argues that, on five separate occasions, the trial court improperly elicited evidence favorable to the prosecution.

First, during the testimony of Malloy concerning the manager’s manual, the trial court asked the witness, “Did you attempt to follow that memorandum to the best of your ability, when this incident happened?” Malloy answered, “Yes, I did.” Second, after Gilcrest admitted on direct examination that he had been given immunity at the preliminary hearing, he was asked, “That means, to your mind, does it not, that you can’t be prosecuted for anything that might conceivably implicate you in this case?” Gilcrest agreed.

The trial court, at that point, asked, “Except perjury, right?” Gilcrest responded, “Right.” Third, police latent fingerprint examiner Donald Keit testified that certain people whose fingerprint cards had been provided to him had been “eliminated.” The trial court asked: “The term ‘eliminate’ means that you have— you have a print that you think might belong to a suspect, but then you find it belongs to a police officer, then that print is eliminated.” After the witness agreed, the trial court asked, “So you didn’t eliminate Defendant Sanders in that sense; you just didn’t find any of his prints.” The witness responded, “That’s correct.” Fourth, former Sheriff’s Deputy Preston Guillory testified that portions of Givens’s trial testimony were inconsistent with “testimony” she gave in an interview.

Specifically, she said at trial that defendant was present when Stewart warned her about the robbery on September 17, 1980; in her interview, however, she told Guillory that no men were present. The trial court questioned Guillory about his use of the word “

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