THE PEOPLE, Plaintiff and Respondent, v. ALFREDO ALVARADO PADILLA, Defendant and Appellant, 11 Cal. 4th 891

Opinion ARABIAN, J. Not long after midnight on January 5, 1988, the body of Esther “Goosey” Alvarado, a homeless prostitute and heroin addict, was found lying facedown on the edge of a country road near Grayson, a small town in Stanislaus County about 15 miles west of Modesto, California. She had shotgun and small-caliber bullet wounds in her chest and abdomen. Beside her body, scrawled in the wet ground beneath her muddy hand, was the word “Jesse.” By daybreak that same morning, Stanislaus County Sheriff’s deputies had taken Jesse Hernandez into custody and charged him with Esther’s murder.

Esther’s fingerprints were found on the passenger window of Hernandez’s automobile, and its undercarriage was caked with mud similar to the kind found in the deep tire tracks at the murder scene. Expended shotgun casings, recently fired, were found in the front yard of Hernandez’s house, and a box of .22-caliber ammunition and two expended .22-caliber shells were recovered on the floorboard of his Oldsmobile.

Within days, sheriff’s deputies began to suspect that Brenda Prado and Alfredo Alvarado Padilla, Brenda’s companion and the defendant here, had conspired with and solicited Hernandez to murder Esther Alvarado in exchange for small quantities of heroin and cocaine. The motive, the district attorney would later contend before a capital jury, was revenge on Esther for a drug rip-off—taking narcotics from defendant and Brenda without paying for them. In an information filed on September 23, 1988, defendant was charged with capital homicide: one count of first degree murder (Pen.

Code, § 187), together with a special circumstance allegation that the killing was for financial gain (Pen. Code, § 190.2, subd. (a)(1)); and one count of conspiracy to commit murder, accompanied by a special circumstance allegation that defendant’s coconspirator, Jesse Hernandez, had carried out the actual killing for financial gain and that defendant had aided and abetted Hernandez in the murder of Esther. (Pen. Code, § 190.2, (subd. (a)(1).) A third count charged defendant with solicitation of murder. (Pen.

Code, § 653f, subd. (b).) A At trial, evidence supporting the prosecution’s theory that defendant and Brenda Prado had conspired to have Hernandez murder Esther in revenge for a drug rip-off first appeared in the form of testimony of sheriff’s deputies relating accounts by relatives and friends of defendant and Brenda of hostility and suspicion existing between the couple, on the one hand, and Esther and Irene Castillo, one of Brenda’s daughters and a close friend of Esther’s, for several months prior to Esther’s murder.

As proof of that animus—and a motive for the conspiracy with Hernandez—the prosecution presented the testimony of two detectives that Irene had told them defendant had shot her with a pistol a few months before Esther’s murder; the bullet grazed the right side of her abdomen, leaving a small scar.

The shooting, a deputy testified Irene told him, had occurred following a violent argument between Brenda, defendant and Irene over the theft of drugs. (Irene disputed this account of the incident, insisting that the shooting had been accidental and had arisen out of a quarrel over the theft of a radio.) Another detective related to the jury a conversation with an Arthur Padilla (no relation to defendant) substantiating the prosecution’s theory of a revenge killing.

Inspector Raul DeLeon, a detective with the Stanislaus County Sheriff’s Department, testified to an encounter with Arthur Padilla in jail in September of 1988. In the ensuing conversation, DeLeon testified, Arthur Padilla described an incident that he said had occurred about a week before Esther Alvarado was murdered. Arthur and Esther, whom Arthur described as a “good friend,” had just arrived at defendant’s house when Esther was set upon by defendant and an unidentified woman.

The two beat Esther until Brenda Prado came out of the house and intervened, telling Arthur Padilla to, in DeLeon’s words, “get her [Esther] out of there or . . . she was going to be killed, or they were going to kill her.” The evidential keystone of the prosecution’s case, however, was the testimony of Anthony Ybarra, a young heroin and cocaine user who lived in Grayson. Ybarra testified that he visited defendant’s house around 10:30 on the evening of January 4, 1988, in an attempt to buy some heroin.

Upon arriving, there was a brief argument outside with a John Alvarado (unrelated to Esther) over the theft of a lawnmower earlier in the evening. Because he was disliked by defendant and Brenda, who suspected he was a police informant and refused to sell him drugs without first strip-searching him, Ybarra relied on Dallas White, another member of defendant’s household, to obtain heroin and cocaine for him from the others.

That January evening, while waiting for White to return from inside the house with some heroin, Ybarra watched across an open field as a tan Oldsmobile stopped in front of Guzman’s Bar and Grill, some distance from the Lawson house. Ybarra saw a woman with long hair get out of the car and enter the bar; he also recognized the car as one frequently driven by Jesse Hernandez, his sister Lupe Porter, and her husband Bruce Porter.

As the Oldsmobile pulled away, heading slowly for defendant’s house, Ybarra concealed himself between a parked car and the garage, because, as he later testified, he did not know who might be in the car. Jesse Hernandez got out of the Oldsmobile and entered the house. A few minutes later, Ybarra listened as Hernandez, Brenda Prado and defendant, carrying a drop light, walked out on the back porch, into the backyard and entered a small, dilapidated trailer.

Ybarra slipped through an opening in the fence surrounding the backyard and crept up alongside the trailer, hoping, he testified, to overhear where defendant and Brenda hid their stash of drugs so that he might return and steal it in safety. Inside, he saw the three sitting at a small fold-out table. Jesse Hernandez was talking; Ybarra gave the jury this account of what he overheard. “[T]hat bitch Goosey” was waiting for him “out there,” Hernandez told the other two. “This here is her 20. She wants a 20, a coke.

I feel like ripping her off." “What you should do is just knock the shit out of her and take her money away from her . . . ,” Brenda replied. “Why, why help her out like that? She already ripped us off, you know.” “Man I feel like knocking the shit out of her,” defendant put in, “just going over there and beating the shit out of her myself.” “You know what?” Hernandez responded, “I’ll do it myself, man . . . why put yourself through all the trouble?

Let me do it. . . .” At this point in the conversation, according to Ybarra, Brenda Prado interjected: “Well, if you are going to kick her ass, why don’t you have something for it ... if you are really out to, if you are really planning on kicking her ass . . . we’ll let you have an issue for yourself.” “Like how much?” Hernandez asked. “I’ll give you an issue, something . . . worth your hassle,” Brenda answered. “I wish I could do that myself . . . kicking her ass myself,” defendant said. “I’ll do it,” Hernandez continued. “You know, I’ll do it ... . And I’ll make sure . . .

I do something . . . righteous . . . . I’ll make it righteous. I’ll make sure I knock the shit out of her and make sure she learns her lesson.” Brenda Prado spoke next: “I’ll tell you what ... if you do something righteous . . . I’ll let you have . . . some black [heroin] and white [cocaine] . . . . I’ll go as far as giving you ... a half a gram of black and, and if you really, if you knock the shit out of her the way I think you will do, . . . hell, I’ll give you half a gram of black and a 16th of white.

And . . . that is more than enough for a good ass beating.” Then, according to Ybarra’s trial testimony, “Hernandez . . . comes up with this other little idea of his that he had. He says, ‘I’ll even go as far as blowing her ass away,’ [and] Brenda says, she goes, ‘You mean to tell me that you’ll actually blow her ass away?’ And he—Hernandez—says, ‘Yeah, I’ll do it.’ ” Defendant then asked Hernandez, “How much are you planning on buying for all that? You know, we don’t have that much to give.” “Hey, we’re family now,” Hernandez answered. “We’re related. I am not planning on asking you for that much . . .

Just give me something righteous. You know me. I’ll do it. . . . You know me for a long time. You know what I am about. I do things. That’s what—you know I do things.” “Okay, I’ll tell you what,” Brenda said. “I am going to take your word for it. I am going to give you ... an issue, and I am going to pay you some right now and some later on, possibly in the morning, possibly tomorrow evening, but I will pay you off . . . some more . . . and if you want some money I can only afford so much more, but I can’t pay you that much more than what...

I think you are expecting.” “Well, I’ll tell you what,” Hernandez answered, “I would be satisfied with a gram of black and a good old issue of coke.” According to Ybarra, “Palone [defendant’s nickname] was worried.” “He says, ‘Well. . . Brenda, you know, hey, if you are going to let him have all that, you know, we are not going to have hardly anything left over, or we are going to have enough just to make our own money back in and have to recoup and the connection . . . you know how hard it is to get ahold of. So . . . we are going to have a hard time.’ ” Brenda “says, ‘Don’t worry, honey.

I have your wake-up .... I got your wake-up. Don’t worry about it.’ ” Asked by the prosecutor if defendant said “anything about the suggestion of Hernandez to kill the girl?” Ybarra testified that “All he said, as I can recall . . . was ... he just said, ‘Goddamn, I hope you don’t rip us off . . . . If . . . you need a piece ... I have a piece I can loan you.’ ” “Hey, that’s all right,” Hernandez replied. “I don’t need any. I got—I have me a shotgun in my ride. ... I have a sawed-off . . . .You know what? I want to try it out. I might as well try it out now since . . .

I got something to do with it, I’ll try it out right now.” “[D]id [defendant],” the prosecutor asked, “say anything agreeing or disagreeing with that idea—to kill the girl?” “Oh, hell no.” Ybarra testified. “He didn’t disagree [about] anything whatsoever. He, as a matter of fact it was all about, you know, blow the bitch away.” “Who said that?” the prosecutor asked. Defendant had said that, Ybarra replied. “And in another manner he said, ‘You know what? I want [to] just get her over with ... to hell with it, man. Just blow the bitch away.

Get her over with, you know.’ ” Ybarra saw Brenda reach into her bra, take out a chunk of heroin, cut off a piece and hand it to Hernandez. She followed that by measuring out a quantity of cocaine into a baggie and handing it to Hernandez. Returning to the front yard of the house, Ybarra watched as Hernandez got into his Oldsmobile and drove down the road, returning to Guzman’s Bar. Moments later, Ybarra saw a figure resembling Esther Alvarado leave the bar and get in the Oldsmobile, which immediately drove off. Soon afterward, Dallas White returned to the front yard from inside the house.

He appeared “paranoid” and apologetic, telling Ybarra that no heroin was available. Fearing that sheriff’s deputies wanted him for questioning in connection with the theft of the lawnmower from John Alvarado’s house earlier in the day, Ybarra asked White to drive him home; White obliged. Ybarra testified that he and White left defendant’s house sometime after 11:30 p.m. On the way to Ybarra’s, the two saw a sheriff’s patrol car parked outside the Alvarado residence.

Ybarra testified that he “ducked down” low in the passenger’s seat, fearing that he might be wanted for questioning concerning the theft earlier in the evening of the Alvarados’ lawnmower. He arrived home shortly before midnight, Ybarra testified; he was able to pinpoint the time because “the ‘Benny Hill show’ came on exactly at 12 o’clock.” Ybarra also testified regarding an encounter with Dallas White, Irene Castillo, Brenda Prado, Betty Lawson and Esther Alvarado on the street in Grayson near the Lawson house the preceding August.

As Ybarra approached the group, he observed Irene writhing on the hood of an automobile, her hand on her stomach in evident pain. Ybarra heard Irene yell at Esther, accusing her of being responsible for defendant’s having shot her.

In the fall of 1988, after defendant had been charged in connection with the murder of Esther Alvarado, police officers in Spencer, Oklahoma, where Brenda Prado had moved with her children a few weeks after Esther’s death, retrieved from an apartment rented by Valerie Castillo, another of Brenda’s daughters, a sawed-off shotgun hidden in the springs of a sofabed on which Brenda had slept. Trial testimony by a ballistics expert indicated that it was “highly likely” that the shotgun was one of the weapons used in the murder.

At defendant’s trial, testimony by a sheriff’s detective was admitted to the effect that Dallas White, a housemate of defendant’s who was confined in jail with him for a time following defendant’s arrest, had told the detective that defendant had told White that “Valerie gave up the shotgun.” White himself testified to similar effect, although he could not recall defendant’s exact words to him.

B The defense contended that defendant had no involvement at all in the murder of Esther Alvarado; the night of the killing, he and Brenda had been miles away playing bingo in Ceres, California, and, later in the evening, visiting a relative in Modesto. They had returned to the house in Grayson they shared with Betty Lawson and Dallas White (also known as Randy or “Tumbleweed”), arriving between 11:30 p.m. and midnight, well after Anthony Ybarra, the only witness linking defendant and Brenda to the alleged conspiracy to murder Esther, had left.

Defendant sought to demonstrate that Anthony Ybarra could not have overheard the alleged conversation in the trailer behind the Lawson house: the testimony of other witnesses established that defendant and Prado did not arrive home until sometime between 11:30 and midnight. Richard Heckathom, a sheriff’s deputy, testified that he arrived at the house belonging to John Alvarado at 9:20 p.m. (where his parked cmiser was observed by Ybarra as he rode home with Dallas White a little after 11:30, according to Ybarra) on the evening of January 4 as part of his investigation of the theft of a lawnmower from Mr.

Alvarado earlier that day. He left the Alvarado residence “approximately an hour to an hour and a half’ later, Heckathom testified, or around 11 p.m. In addition, Dallas White testified that he had never sold dmgs to Anthony Ybarra; that Ybarra had left the Lawson house before Jesse Hernandez arrived there on the night of January 4; and that there was no drop light at the house long enough to reach from the house to the trailer, as Ybarra had testified. In her defense testimony, Betty Lawson denied any knowledge of the gunshot injury to Irene Castillo in July or August of 1987.

She also denied having entered the backyard trailer on the night of January 4, or that, to her knowledge, defendant, Prado, or Hernandez had gone there that night. In fact, she testified, the trailer was “all tore up” inside; “you couldn’t get into the trailer,” she said. According to Lawson’s testimony, Anthony Ybarra had left the house at least an hour before defendant and Prado had arrived home late on the night of January 4.

According to the testimony of Michael Clements, one of the deputies who questioned defendant in the course of investigating Esther’s killing on the morning of January 5, defendant said that he and Brenda had been in Ceres, a nearby town, playing bingo on the night of January 4, and had returned home between 11:30 p.m. and midnight. Defendant’s former stepfather, Gabriel Ramos, Jr., testified that defendant and Prado had dropped by his house in Modesto about 10:15 on the evening of January 4; they had come from a bingo game, he testified, and stayed about 45 minutes.

Modesto, the defense established, is approximately 15 minutes by car from the Lawson house in Grayson. Last, during his cross-examination of Anthony Ybarra, defense counsel introduced evidence that Ybarra had a long record of criminal convictions and had received favorable treatment, in the view of the defense, in exchange for his testimony against defendant. A jury found defendant guilty of first degree murder, conspiracy to commit murder, and solicitation of murder.

It also found true the special-circumstance financial-gain allegations with respect to the first degree murder and conspiracy to commit murder counts and found the multiple arming enhancements to be true. C At the penalty phase of defendant’s trial, the prosecution presented testimony and other evidence of eight separate incidents of violent or criminal conduct by defendant over a period of seventeen years.

These included the juvenile breaking and entering of a drive-in restaurant; an arrest for public drunkenness with his former stepfather culminating in an assault on the arresting officer at the county jail; a knife fight with his uncle, Jesse Alvarado, in which Alvarado was cut; the attempted armed robbery of a 7-Eleven convenience store in Long Beach culminating in an assault on two undercover police officers and several incidents of assault—one on a police officer, Don Watson, who had ordered Brenda Prado’s car towed; one at a party on a neighbor, Damian Silva; another involving another neighbor, George Funk, resulting in the fracture of Funk’s jaw in three places; and an incident in which Gilbert Bejaran, a twelve-year-old, was choked by defendant while visiting defendant’s daughter in the family home.

Defendant’s penalty phase defense began with an account of the circumstances of his early life. His parents separated when he was around eight years old, and for a time he and his brothers and sisters lived with their mother, subsisting on welfare and what their father provided them. The children later lived with their father in a tough neighborhood in southern California and then in Modesto. At 15, defendant and a brother went to live with an uncle.

Defendant appeared to flourish there, often going fishing with his uncle, attending truck driving school, competing in high school track and wrestling, and working in his uncle’s plumbing business. Although defendant did not use drugs or alcohol during this period of his life, several family members had substance abuse problems. Evidence in the form of a report by defendant’s former parole officer was introduced to show that defendant’s stabbing of Jesse Alvarado in a 1973 knife fight was provoked by Alvarado; defendant acted in self-defense. Defendant’s own testimony buttressed this account of the incident.

Brenda Prado also testified on defendant’s behalf at the penalty phase. The two had met in 1976; she had four children by a prior marriage and she and defendant together had five children. Defendant was a good father to all of the children. Prado also testified that defendant had been drinking at the time of the Silva incident and that he had struck George Funk because Funk had hit Valerie, one of defendant’s daughters. After defendant began to use cocaine and heroin in 1986, his addiction grew steadily. Eventually, Prado agreed to manage the drug sales in order to support defendant’s habit and the children.

Betty Lawson, Dallas White and Esther Alvarado were all heroin users and customers of Prado and defendant; Lawson and Esther both supported their drug habits by acts of prostitution, usually carried out in the trailer in the backyard of the Lawson house. The 1987 incident in which defendant’s stepdaughter Irene was shot occurred because of Irene’s acts of prostitution in the Lawson trailer, Prado testified. Defendant found Irene’s behavior disrespectful and the two had quarreled. When defendant went into the bedroom to retrieve a revolver so the other children would not find it, Irene followed him.

They struggled; Irene grabbed the gun and told defendant she was going to kill him. As they fought over the it, the pistol discharged, grazing Irene. Irene was not shot because defendant and Prado believed she had stolen heroin from them. Although Prado had sold drugs to Jesse Hernandez in the past, the last sale had occurred two days before Esther was murdered. Prado had known Anthony Ybarra since 1987 but always refused to sell drugs to him, knowing that he was a police informant. For that reason, Ybarra had told Prado twice in 1987 that he would get even with her if she did not sell heroin directly to him.

Not long before Esther’s murder, Prado testified, defendant had overdosed on cocaine. Frightened by that experience, he determined to kick his habit and take better care of the children. Although he tried to overcome his addiction several times, he always sickened and began to use drugs again. He had made an appointment with a methadone clinic for the morning of January 5, 1988, but failed to keep it when the police arrived at his house as part of their investigation of Esther’s murder.

Defendant gave the following penalty phase testimony: The juvenile breaking-and-entering arrest at the M & M Drive-In was the result of a prank; defendant was the class clown and, wanting to pretend to take the food orders of his friends, climbed through an open window. He was given probation but violated it by continuing to drink. As a result, he was sent to Sierra Conservation Camp; there he earned a high school diploma. Following his release, defendant enrolled in college but began drinking and chasing women and dropped out. It was about this time that the fight with his uncle, Jesse Alvarado, occurred.

That incident was provoked by Alvarado, who had been drinking and pulled a pocket knife on defendant. The incident at the 7-Eleven store in Long Beach occurred after defendant had been drinking. He had entered the store to buy cigarettes but left when he realized that he had no money. The undercover officers had jumped him as he left; he did not reach for the gun he was carrying and did not attempt to shoot them. He did not say the things attributed to him in the officers’ testimony; they beat him up twice, once at the scene and later at the jail. The Silva incident also did not occur as Mr. Silva testified.

Defendant had gone to the Silvas’ to find Prado and had gotten into an argument with Mrs. Silva when Mr. Silva poked defendant with an empty flower pot and told him to leave. Defendant struck Silva two or three times before being threatened with a kitchen knife. The choking incident involving Gilbert Bejaran occurred when Gilbert and his friends refused to leave the Lawson house after being told to go by defendant; defendant had lifted Gilbert up by his collar and later apologized. Defendant met Brenda Prado after being released from prison for violating parole in 1976. They lived together as husband and wife.

He first became addicted to heroin in 1986; when Prado found out about it, she was angry and tried to persuade him to stop. When he could not, she agreed to take charge of his drug dealing activities, although she did not like it. After an accidental cocaine overdose in 1987, defendant decided to give up drugs. Although he tried several times, he was unsuccessful. He had made an appointment at a methadone clinic for July 5, the morning Esther’s body was found; under the circumstances, he failed to keep the appointment.

Defendant gave Esther drugs on occasion, but never fronted drugs to her; nor did Esther ever steal any drugs from him or from Prado. He never struck Esther. Irene was never shot by defendant. The two did struggle for possession of a pistol in his waistband, but she made up the story about having been shot. He did not know who had murdered Esther and did not hire anyone to kill her. Several correctional and parole officers testified on defendant’s behalf. The gist of their testimony was that defendant had been a good inmate who conformed to the rules and was respectful of the staff.

Defendant’s early hostility had disappeared and his attitude appeared to have improved. Morris, his parole officer in 1977, testified that defendant was an exceptional parolee who appeared to be free of alcohol and drug use. Other law enforcement officers who had recent contact with defendant described him as conforming, quiet and cooperative, and not a problem. Defendant’s niece, stepson and stepdaughter all testified that they regarded defendant as their father and hoped to visit him in prison. Following its deliberations, the penalty jury set defendant’s sentence at death.

Like defendant, Jesse Hernandez was separately charged with capital homicide, tried, convicted, and also sentenced to death for his

part in the murder of Esther Alvarado. (People v. Hernandez (S020244, app. pending).) Defendant’s appeal to this court is automatic. We now affirm. I. Guilt Phase Issues 1. Sua sponte duty to instruct on lesser included offenses of first degree murder. Defendant contends the trial court committed error by failing, on its own initiative, to instruct the jury on the elements of second degree murder, manslaughter, and battery, as lesser included offenses of first degree murder.

Underlying this claim is the argument that the jury might have concluded, on the basis of Anthony Ybarra’s testimony, that defendant’s “drug and alcohol induced blitherings encouraged the murder . . . but that his degree of culpability was less than first degree murder.” In other words, defendant argues that he was so mentally impaired by drug use at the time of the conversation in the trailer that he was unable to form the intent required for first degree murder. The People, relying on our holding in People v.

Saille (1991) 54 Cal.3d 1103 [2 Cal.Rptr.2d 364, 820 P.2d 588], that in the aftermath of the 1981 legislative abolition of the diminished capacity defense, a defendant must request a so-called “pinpoint” instruction on the lesser included offenses of first degree murder, argue that the trial court had no duty to so instruct in this case absent such a request by the defense.

This shift in responsibility from the trial judge to the defendant is said to follow from the fact that, as we stated in Saille, with the abolition of the diminished capacity defense, “ ‘when a defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties.

While a court may well have a duty to give a “pinpoint” instruction relating such evidence to tihe elements of the offense and to the jury’s duty to acquit if the evidence produces a reasonable doubt, such “pinpoint” instructions are not required to be given sua sponte and must be given only upon request. . . .’” (Id. at p. 1117.) Defendant’s challenge to the trial court’s failure to give the jury a lesser included offense instruction with respect to the charge of first degree murder, however, is broader than the issue of so-called “pinpoint” instructions.

His claim is that had such a lesser included instruction been given, the jury, having heard evidence of defendant’s chronic drug abuse, might have concluded that he lacked the mental state required for first degree murder. The argument misapprehends the theory of defendant’s liability for first degree murder on which the case was framed by the information and tried. Defendant was charged in the information with conspiring, soliciting, and aiding and abetting Hernandez in the murder of Esther Alvarado; his criminal liability, if any, was thus derivative, for it depended on Hernandez’s state of mind.

The jury was so instructed by the trial court, who told them that they could find defendant guilty of first degree murder only if they found that “the killing was preceded and accompanied by a clear, deliberate intent on the part of Jesse Hernandez to kill, which was the result of deliberation and premeditation . . . .” (Italics added.) “The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious.

Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator’s purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.” (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [221 Cal.Rptr. 592, 710 P.2d 392]; see also People v.

Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318]; People v. Terry (1970) 2 Cal.3d 362, 401 [85 Cal.Rptr. 409, 466 P.2d 961].) Relying on language in People v.

Woods (1992) 8 Cal.App.4th 1570 [11 Cal.Rptr.2d 231], defendant contends that the trial court had a sua sponte duty to instruct on lesser included offenses of first degree murder because, as he argues in his brief, “the fact that the perpetrator of the crime is guilty of one crime does not mean that the person who aids and abets the perpetrator is necessarily guilty of that degree of the crime.” The record, however, suggests no factual basis for such a conclusion in this case.

The evidence showed indisputably that the object of the conspirators’ discussion in the trailer on the night of January 4 was the premeditated murder of Esther Alvarado, not the commission of a lesser offense. Because the evidence before the jury was such that defendant, as an “aider and abettor, if guilty at all, [was] guilty of something beyond [a] lesser offense” of first degree murder, the trial court was not required to instruct on lesser offenses of first degree murder. (People v. Woods, supra, 8 Cal.App.4th at p. 1593, italics added.) 2. Failure to instruct the jury regarding defendant’s oral admissions.

At trial the prosecution introduced testimony to the effect that, while in jail awaiting trial, defendant had told Dallas White, then a jailmate of defendant, that a sawed-off shotgun had been recovered from Valerie’s house by police officers, referring to the sawed-off shotgun hidden in the couch or daybed on which Brenda slept in Valerie Castillo’s Oklahoma house.

Because, as he notes, the prosecution “argued the admission extensively to the jury,” defendant contends that the trial court’s failure to read the jury CALJIC No. 2.70—to the effect that extrajudicial statements of a defendant short of a confession “should be viewed with caution”—was not only error, but prejudicial. We conclude that any error in failing to give the instruction was not prejudicial under the circumstances of this case. We evaluate a claim of prejudicial failure to give such a cautionary instruction under the Watson standard. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) As we formulated the test in People v.

Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1], where we held that the trial court must give such an instruction sua sponte, “[t]he omission [i.e., of an oral admissions cautionary instruction] does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. [Citations.]" (Id. at p. 455.) “The purpose of the cautionary instruction,” we explained, “is to assist the jury in determining if the statement was in fact made. [Citations.]” (Id. at p. 456; see also People v.

Stankewitz (1990) 51 Cal.3d 72, 93-94 [270 Cal.Rptr. 817, 793 P.2d 23]; People v. Bunyard (1988) 45 Cal.3d 1189, 1224-1225 [249 Cal.Rptr. 71, 756 P.2d 795].) Defendant argues that the absence of such an instruction must have been prejudicial because the testimony came in through a detective—Fontes— rather than through a friend of defendant, there was a dispute as to “about the exact words used, their meaning [and] whether the admissions were reported accurately” (People v.

Pensinger (1991) 52 Cal.3d 1210, 1268 [278 Cal.Rptr. 640, 805 P.2d 899]), and there was evidence “that the statement was not made ... or was inaccurately remembered or reported.” (People v. Stankewitz, supra, 51 Cal.3d at p. 94.) The argument overplays the record. The prosecution originally called Dallas White to relate defendant’s purported statement to him while in jail. On the stand, White admitted that defendant had told him that the shotgun “was found in some girl’s house.” Pressed by the prosecution, White testified that defendant had told him that the shotgun had been found in “Valerie’s house.

That’s what he said." White, however, thought that Valerie had been living in California, not Oklahoma, and testified that the words “gave up” the shotgun “might have been the words I used” in later retailing defendant’s account to Detective Fontes. He denied, however, that those were the words that defendant had used when speaking to him in jail; in fact, White testified, he could not remember what defendant had said to him that caused him, White, to say to Fontes that Brenda’s daughter “gave up” the shotgun.

Detective Fontes was then called by the prosecution to testify as to what White had told him defendant had said about the recovery of the shotgun. “I asked him how he knew about a sawed-off shotgun .... [and h]e said that he had talked to [defendant] at the jail and [defendant] had told him Brenda’s daughter gave up the shotgun back in Oklahoma,” Inspector Fontes testified. “Is that a quotation from Mr. White?” the prosecutor asked. “That’s as near as I can recall it as a quotation, yes,” Fontes answered.

Thus it is clear from this account that the value of the disputed testimony does not turn on whether defendant used the words “gave up” or used some other word to describe the recovery of a shotgun at Valerie’s house; it is the fact of the recovery of such a weapon that was critical, and as to that event there really was no dispute that defendant had in fact made such a statement: White testified that defendant had told him that a sawed-off shotgun had been found by police at Valerie’s house; Fontes confirmed that account, embellishing it with the phrase “gave up.” The purported inaccuracies, such as they were, go not to the fact of the statement by defendant to White, but to details (where Valerie lived at the time, whether she “gave it up”) that were immaterial.

In light of these circumstances, as well as the comparatively marginal role defendant’s statement must have played in the totality of the record, we conclude that any error in failing to read to the jury CALJIC No. 2.70 was not prejudicial. 3. Admission of evidence that defendant shot his stepdaughter. At trial, the prosecution offered, and the court admitted into evidence, testimony of Irene Castillo, another of defendant’s stepdaughters, that defendant had placed a handgun next to her abdomen in the course of an argument and pulled the trigger, inflicting a flesh wound.

Defendant argues that the admission of this evidence—offered by the prosecution under Evidence Code

section 1101, subdivision (b), to show a “prior bad act” by defendant—was erroneous because the record fails to show affirmatively that the trial court balanced the potential prejudice of the evidence against its probative value, a weighing required as a condition of admission by

section 352 of the Evidence Code. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 404 [27 Cal.Rptr.2d 646, 867 P.2d 757] [“Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]”’].) The testimony of Castillo was admitted by the trial court only after briefing by both sides and lengthy argument by counsel out of the presence of the jury.

The prosecution’s position was that defendant’s placing a pistol against Irene’s abdomen several months before Esther’s death and pulling the trigger, together with evidence that defendant and an unidentified female had beaten up Esther (accompanied by statements by Brenda Prado that defendant would “kill her”) a week or so prior to the murder and the circumstances surrounding those events, constituted powerful evidence of defendant’s motive to conspire with Brenda and Hernandez to have Esther killed—that is, revenge on Esther for having taken drugs from defendant and Brenda without paying for them.

The prosecution insists that a close examination of the record demonstrates by implication that the trial court was aware of—and therefore must have balanced—the probative value of the testimony against the risk of undue prejudice to defendant. It points to the fact that the prosecution’s pretrial brief explicitly discussed the Evidence Code

section 352 issue, as well as defense arguments at the sidebar that the admission of the challenged evidence would be highly prejudicial, as demonstrating that, because the issue of probative value versus undue prejudice was before the trial court, ergo it must have conducted such an evaluation. Our cases make it clear that, although the record must affirmatively show that the trial court weighed prejudice against probative value in admitting evidence of prior bad acts (see, e.g., People v. Wright (1985) 39 Cal.3d 576, 582 [217 Cal.Rptr. 212, 703 P.2d 1106], People v.

Green (1980) 27 Cal.3d 1, 25 [164 Cal.Rptr. 1, 609 P.2d 468]), the trial judge “need not expressly weigh prejudice against probative value—or even expressly state that he has done so [citation.].” (People v. Mickey (1991) 54 Cal.3d 612, 656 [286 Cal.Rptr. 801, 818 P.2d 84]; People v. Crittenden (1994) 9 Cal.4th 83, 135 [36 Cal.Rptr.2d 474, 885 P.2d 887].) Thus, as the cases reflect, we are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.

Several of the cases to which we have been cited involved argument of counsel or comments by the trial court, or both, touching on the issues of prejudice and probative value from which we might infer that the court was aware of the Evidence Code

section 352 issue and thus of its duty to weigh probative value against prejudice. (See, e.g., People v. Garceau (1993) 6 Cal.4th 140, 179 [24 Cal.Rptr.2d 664, 862 P.2d 664]; People v. Clair (1992) 2 Cal.4th 629, 660-661 [7 Cal.Rptr.2d 564, 828 P.2d 705]; People v. Edelbacher (1989) 47 Cal.3d 983, 1016-1017 [254 Cal.Rptr. 586, 766 P.2d 1]; People v. Montiel (1985) 39 Cal.3d 910 [218 Cal.Rptr. 572, 705 P.2d 1248].) Those guideposts are sufficiently present in the record in this case.

We have read the transcript of the oral argument of counsel respecting the admissibility of testimony of defendant’s shooting of Irene Castillo and the comments of the trial judge in reaching his ruling. The prosecution stated in its pretrial brief that an Evidence Code

section 352 weighing was required as a condition of admitting the evidence and, although not the strongest of reeds, defense counsel in his oral argument on the point took the position that what he referred to as the “extreme prejudice” likely to follow on the admission of such evidence should bar its use. This use of the talismanic word “prejudice,” together with the prosecution’s discussion of the weighing process in its pretrial brief on the point, are a sufficient assurance under our reasoning in People v.

Montiel, supra, 39 Cal.3d 910, to signal that counsel and the trial court had in mind the appropriate analytic framework for passing on the admissibility of the evidence, that the court was therefore aware of the need to weigh the evidence under

section 352, and thus that it must have done so. The scantiness of the transcript makes the issue a close one, however, and were we to conclude that the record indications are insufficient, we are nevertheless satisfied that, assuming the trial court did not evaluate the evidence under Evidence Code

section 352, had he done so he would have admitted it in any event. Our review of the trial transcript indicates that the prosecution sought to introduce testimony relating to defendant’s shooting of his stepdaughter as evidence of a motivation common to both that incident and in later hiring Jesse Hernandez to murder Esther Alvarado. Trial testimony tended to establish that Prado and defendant were both convinced that Irene and Esther had together stolen drugs from them.

Accordingly, evidence that defendant had shot Irene, together with testimony indicating that he had done so in retaliation for the theft of drugs, would have been a linchpin in the prosecution’s theory of the motive behind the conspiracy to have Esther murdered—that is, revenge. Defendant argues that the evidence should not have been admitted because it had virtually no probative value. As defense counsel argued before the trial court, defendant’s motive in shooting Irene had nothing whatever to do with drugs but with the theft of a radio and was, in any event, an accident.

That account, however, was one of two conflicting versions offered by the prosecution and defense to explain the incident. So long as the prosecution’s evidence was relevant to the issues before the jury, that is, had any tendency in reason to prove or disprove a disputed fact in issue (Evid. Code, § 210), it was admissible. Thus, on the probative side of the equation, the challenged evidence offered considerable support to the prosecution’s theory of the case. With respect to the other side of the Evidence Code

section 352 balance sheet—the question of prejudice—defendant argues that the evidence was incendiary because of the risk that the jury would be irrationally inflamed on learning that defendant had shot his own stepdaughter over an issue involving drugs. The governing test, however, evaluates the risk of “undue” prejudice, that is, “ ‘evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,’ ” not the prejudice “that naturally flows from relevant, highly probative evidence.” (People v.

Karls (1988) 46 Cal.3d 612, 638 [250 Cal.Rptr. 659, 758 P.2d 1189], quoting People v. Yu (1983) 143 Cal.App.3d 358, 377 [191 Cal.Rptr. 859]; see also People v. Gionis (1995) 9 Cal.4th 1196, 1214 [40 Cal.Rptr.2d 456, 892 P.2d 1199].) We conclude, therefore, that if in fact the trial court failed to balance the factors of prejudice and probative value of the evidence as required by Evidence Code

section 352, the error was not prejudicial to defendant’s interests. 4. Alleged. Marsden error in denying defendant an opportunity to relate specific instances of trial counsel’s asserted incompetence. Approximately three weeks after the penalty phase of defendant’s trial had concluded with the jury’s verdict of death, defendant wrote the trial judge the following note: “Your Honor: [<]]] I Alfredo Alvarado Padilla the defendant don’t feel that I was competently or adequately represented by counsel Fred Cannat [sic].

And I ask that a retrial be granted to me for the following reasons: That my counsel did not subpena witnesses for my defense which I had asked for. These witnesses would have impeached Anthony Ybarra and proved me innocent. Defense counsel did not cross-examine two prosecution witnesses, Irene Castillo and Arthur David Padilla whos[e] testimony[] was incriminating against me. I also ask that the court take into consideration a piece of evidence which was entered into evidence by the defense at my penalty trial. That can set a time frame that Mr.

Ybarra was given a ride home on his admittion [szc] in testimony that night. I feel that defense counsel should have had entered this piece of evidence at my guilt trial for impeach [sic] of [M]r. Ybarra. It is for these reasons and the incompetence of my attorney that I ask for this retrial. [^D Thank you! Alfredo A.

Padilla.” The following week, at the time set for entry of judgment and pronouncement of sentence, defense counsel stated in open court that he had discussed with defendant a continuance of the sentencing proceeding in order to “file some papers in regard to the Court’s ruling on the mandatory motion for a new trial.” Defendant agreed to waive the time for sentencing, which was put over for two weeks.

The following exchange then occurred: “The Court: I have received a letter from the Defendant requesting some consideration about adequacy of counsel, and so forth, but I don’t know whether that’s—You wish to pursue that at this point or not? “Defendant: No, Your Honor. “The Court: No? “Defendant: No. “The Court: Okay. Very well. The defendant is remanded to the custody of the sheriff.” Two weeks after that colloquy, defendant’s attorney filed with the court a memorandum arguing for a sentence of life without parole instead of death.

A hearing on the automatic motion to modify the verdict was held, argument was heard, and the motion was denied. Throughout all of this, nothing was said by defendant, his attorney, or the trial judge about defendant’s note requesting a retrial on the ground that his attorney had been incompetent. It is on the basis of this record that defendant now argues that the trial court erred in not granting him a so-called “Marsden hearing” at which he would have an opportunity to present evidence as to the manner in which counsel’s legal representation was ineffective. (See People v.

Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) It is true we held in Marsden that “a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney.” (Id. at p. 124.) But that is not what occurred here.

While defendant’s note to the court vaguely charged his trial attorney with failing to introduce exculpatory material, it did not ask that counsel be removed or that new counsel be appointed; nor did it necessarily suggest that a fundamental breakdown had occurred in the attorney-client relationship. “[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel. [Fn. omitted.] The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing. [^ There is no constitutional right to an attorney who would conduct the defense of the case in accord with the whims of an indigent defendant. [Citations.] Nor does a disagreement between defendant and appointed counsel concerning trial tactics necessarily compel the appointment of another attorney. [Citations.]” (People v.

Lucky (1988) 45 Cal.3d 259, 281-282 [247 Cal.Rptr. 1, 753 P.2d 1052].) Defendant’s note seems, rather, to have been a request for a new trial based on his lawyer’s ineffective representation at trial. Whether viewed as a request for a new trial, or even for substitute counsel, or for both, however, the request was clearly abandoned, for the record demonstrates that defendant affirmatively withdrew the request made in his note in the course of the later colloquy in open court and never again raised it. 5. Failure to advise defendant of his right to a second attorney and to appoint a second attorney.

Defendant contends that his court-appointed trial counsel devoted an inadequate amount of time to the preparation of his defense, a failing, he argues, that was so manifest from counsel’s fee requests filed with the trial court, that the trial court fell under a sua sponte duty to advise defendant of his right to the appointment of a second attorney as cocounsel. He relies on Penal Code

section 1095 as the source of the court’s duty to advise him that he could be represented by a second counsel. Penal Code

section 1095 merely provides that two counsel “may argue the cause” (italics added) in a capital case, and that in any other case, the court has discretion to restrict argument to a single attorney. As we said in People v. Jackson (1980) 28 Cal.3d 264 [168 Cal.Rptr. 603, 618 P.2d 149], “ ‘The right guaranteed by . . .

section [1095] is applicable only to a defendant who has retained more than one attorney as counsel in the case. It does not give the defendant in a capital case the right to have more than one counsel appointed to represent him, but merely allows a defendant who has retained multiple counsel the right to have at least two of them argue the case.’ ” (Id. at p. 286, quoting People v. Natale (1962) 199 Cal.App.2d 153, 157 [18 Cal.Rptr. 491], italics added.) Another statute, Penal Code

section 987, subdivision (d), does provide for the appointment of a second attorney to represent the defendant in a capital case. It confers discretion on the trial court to “appoint an additional attorney as a cocounsel upon a written request of the first attorney appointed” and provides for the presentation of an affidavit setting forth the reasons in support of the request. It is evident from the text of Penal Code

section 987, subdivision (d), that it is appointed trial counsel, rather than the capital defendant himself, who needs to know the circumstances under which a second attorney may be appointed and the mechanics of seeking the appointment. Indeed, under the statute, the trial court lacks any specific authority to appoint a second attorney in the absence of a request from the first attorney and the making of a factual record sufficient to support such an appointment.

To the extent that defendant’s argument is that the trial courts have inherent power to appoint a second attorney, no authority supporting that proposition is cited. We need not decide that question in light of this record, however, because neither the nature of the charge nor of the defense suggests that the case presented dimensions requiring the appointment of a second attorney. It is true that appointed counsel’s wife died between the guilt and penalty phases of the trial, but counsel had an assistant throughout and never indicated to the trial judge that he required additional help.

Defendant himself never expressed dissatisfaction with his attorney until after the guilt and penalty phases of his trial had concluded. In any event, defendant’s claim that the trial court should have been alerted to the need for second counsel by the deficiencies in counsel’s performance as manifested by the fee requests is belied by the record. At least two of counsel’s four fee requests (and perhaps more—the signatures on two of them are illegible) were reviewed by judges of the court other than the one who presided at defendant’s trial.

The trial judge thus had no reasonable means of evaluating trial counsel’s performance other than what he observed of it in court. Our review of the record does not disclose that counsel’s performance was such that the trial court should have been alerted to consider appointing a second attorney, assuming it possessed such authority. 6. Prosecutorial misconduct in failing to correct Anthony Ybarra’s perjurious testimony. Defendant points to five discrepancies in Anthony Ybarra’s testimony, all relating to sentences received or dispositions made in connection with Ybarra’s prior theft convictions.

He contends that the prosecution had a duty to and failed to correct this allegedly perjurious testimony, thus violating his due process interests. (See, e.g., Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 218-219, 83 S.Ct. 1194]; Giglio v.

United States (1972) 405 U.S. 150, 154 [31 L.Ed.2d 104, 108-109, 92 S.Ct. 763] [Brady disclosure requirements apply to evidence relating to witness credibility].) For the most part, an examination of Ybarra’s testimony reveals that there was no failure to disclose to the jury an accurate account of his conviction and sentencing history during the course of his examination and cross-examination.

In those few instances where minor inaccuracies crept into the record, no error of constitutional dimension occurred because the inaccuracies in the witness’s testimony were not material errors “in the sense that [their] suppression undermines confidence in the outcome of the trial.” [United States v.

Bagley (1985) 473 U.S. 667, 678 [87 L.Ed.2d 481, 491, 105 S.Ct. 3375]; In re Sassounian (1995) 9 Cal.4th 535, 543-544 [37 Cal.Rptr.2d 446, 887 P.2d 527].) First, defendant asserts that Ybarra lied when he testified that he served 10 days of a 15-day sentence for a petty theft conviction; in point of fact, defendant asserts, Ybarra’s entire 30-day sentence was suspended, he received 12 months’ unsupervised probation, and he served no time.

The record shows, however, that Ybarra received partial credit for a $300 fine in that matter in the form of credit for time served and that, after Ybarra testified at defendant’s trial, a bench warrant issued for his arrest in connection with the failure to pay the balance of the fine still owing. Thus, Ybarra did serve some time for that offense and may have served more, depending on the disposition of the bench warrant, a matter not disclosed by the record. We find nothing in the account of this incident that could be construed as misconduct.

Second, defendant asserts that Ybarra lied when he testified that another municipal court case was dismissed when he “went through drug diversion.” In fact, defendant asserts, a charge of being under the influence of a controlled substance which carried a mandatory 90-day jail sentence was dismissed and, although he was ordered to enroll in the diversion program, he failed ever to do so, without consequence. Defense counsel, however, did elicit from the witness an admission that he had been able to avoid serving 90 days in jail by virtue of a plea in the case.

That admission, of course, was the point of defense counsel’s examination of Ybarra on this matter and he effectively made it. Third, defendant contends that Ybarra lied when he stated, in response to the prosecutor’s question, “have you ever been convicted of a felony as a felony,” that “as a felony ... I was convicted of grand theft.” In fact, defendant asserts, Ybarra was permitted to plead to misdemeanor grand theft, and a related felony charge (petty theft with prior) was dismissed as part of a plea bargain.

The jury was thus misled, defendant implies, by remaining unaware that the felony charge was reduced to a misdemeanor. The record discloses that three separate theft cases (involving aluminum siding, a screwdriver set, and some spark plugs) were consolidated for a negotiated disposition on September 2, 1988. Under the terms of the plea agreement, Ybarra agreed to enter a plea of guilty to misdemeanor grand theft on the charge involving the aluminum siding, and guilty to petty theft with a prior—a felony—on the charge involving the spark plugs.

In exchange, the prosecution agreed to recommend jail time (120 days), probation and restitution in the siding case,. probation and an 8-month concurrent jail term on the spark plug charge, to recommend that Ybarra be confined outside Stanislaus County because of his status as a witness in defendant’s case, and to recommend dismissal of the case involving the theft of the screwdrivers. Ybarra’s pleas under the agreement were duly taken and the case involving the theft of the spark plugs, a felony, was certified to the superior court for sentencing.

On December 27, 1988, the record discloses, the superior court sentenced Ybarra to three years’ probation and ordered him to serve two hundred forty days in jail and pay a fine of $250. As noted, defendant complains that in testifying, Ybarra misrepresented to the jury the disposition of the aluminum siding case as involving a felony. But Ybarra’s answer to the prosecution’s question whether he had ever been convicted of a felony “as a felony” was accurate: he responded that “[a]s a felony I’ve been convicted of—I was convicted of a grand theft.

And then after that I was convicted of a petty theft with a prior, which was a felony.” We see nothing here to suggest that the witness misrepresented his criminal history before the jury or that the prosecution attempted to hide anything. In any event, as the prosecution notes, defense counsel’s cross-examination of Chief Deputy District Attorney Berrett gave the jury a full account of the details of the negotiated disposition of the three theft matters.

Defendant also complains that Ybarra lied to the jury by failing to disclose the prosecution’s agreement to recommend that he be confined in a jail outside of Stanislaus County and faults the prosecution for failing to disclose that fact to the jury. It is true that the witness did not mention that fact in his testimony. However, it was brought out by defense counsel in his examination of Ms. Berrett, who stated that, as part of the bargain, the prosecution agreed to “actively seek" Ybarra’s placement in a facility outside the county.

Last, defendant complains that Ybarra lied to the jury by misstating the terms of the plea disposition, testifying that a felony charge had been dismissed because he pled guilty to “three other petty thefts with a prior which were felonies." In fact, as defendant notes, Ybarra pled guilty to a single count of petty theft with a prior. As noted, Ms.

Berrett’s testimony under cross-examination by defense counsel laid out the entire matter for the jury’s understanding; although Ybarra seemed at times to have been confused over the details of his tortured criminal history, the jury could not have failed to grasp the gist of it—the witness was a habitual thief and chronically in the coils of the criminal justice system. Defendant relies chiefly on a decision from the United States Court of Appeals for the Second Circuit, United States v.

Seijo (2d Cir. 1975) 514 F.2d 1357, for the proposition that perjury by a key prosecution witness regarding his prior convictions is prejudicial as a matter of law and reversible error. We find Seijo easily distinguished from this case on its facts. Unlike the witness there, whose prior drug trafficking conviction was suppressed and not disclosed to the jury, Ybarra was not portrayed before the jury as the young and innocent victim of senior criminal associates whose credibility was superior to that of the veteran conspirators against whom his inculpatory testimony was offered.

His very introduction to the jury was heralded by the prosecution’s admission that he was a drug addict, a thief, and a police informant. “Anthony Ybarra,” the prosecutor told the jury in his opening statement, “will tell you . . . that he’s an ex-felon .... that he’s been a thief; that he has stolen before to support his drug habit. . . you are going to hear . . . about thefts and rip-offs that were involved in either the taking of drugs or the taking of property to buy drugs.” And far from being an “innocent kid” like the witness in United States v.

Seijo, supra, 514 F.2d 1357, Ybarra himself admitted in his testimony to a laundry list of prior convictions and a chronic criminal lifestyle that could have left no doubt in the mind of any reasonable juror concerning the witness’s likely truthfulness and integrity. The few omissions, such as they were, from the roster of Ybarra’s prior convictions that were allowed to creep into the record were thus cumulative of other, more powerful evidence of the witness’s crime-ridden past that was before the jury.

On this record, we have no doubt that the minor omissions were not the sort that violated defendant’s due process interests. 7. Improper imputation of financial gain motive to defendant as a result of erroneous instructions. Defendant’s contention under this, the first of three claims of error in instructing the jury as to the financial gain special circumstance (see Pen. Code, § 190.2, subd. (a)(1)), is that the instruction given was flawed because it improperly permitted the financial gain motive of Jesse Hernandez to be imputed to defendant.

That is, defendant argues that the instruction given the jury failed to require that it make an individual determination that defendant’s individual motive “be to provide financial gain to induce the murder.” The argument is based on a flawed premise. Construing the financial gain special circumstance added by the 1978 initiative, in People v.

Bigelow (1984) 37 Cal.3d 731 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723] we adopted a limiting construction of the provision “under which the financial gain special circumstance applies only when the victim’s death is the consideration for, or an essential prerequisite to, the financial gain sought by the defendant.” (Id. at p. 751.) But as we went on to point out in Bigelow, “[u]nder the 1978 law, [the hirer of a paid killer] is not directly subject to the special circumstance unless he was motivated by financial gain, but is subject to a special circumstance finding as one ‘found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder ... in any case in which ... the special circumstance enumerated in paragraphs (1) . . . [is] specially found ... to be true.’ (§ 190.2 subd. (b).)” (Id. at p. 750, fn. 11.) This is so because, at the time of Esther Alvarado’s murder, subdivision (

b) of Penal Code

section 190.2 provided that “[e]very person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer death or [life without parole] in any case in which ... the special circumstance^ enumerated in paragraph^ (1) . . .of subdivision (

a) of this

section has been charged and specially found . . . to be true.” Thus, by the terms of the statute, “one who intentionally aids or encourages a person in the deliberate killing of another for the killer’s own financial gain is subject to the special circumstance punishment.” (People v. Freeman (1987) 193 Cal.App.3d 337, 339 [238 Cal.Rptr. 257].) The result is a sensible one. The likelihood that one who hires another to kill the victim is motivated by a desire to enrich the killer is remote; the hirer is far more likely to have motives of his own, motives which are not necessarily pecuniary.

Thus, when a person commits murder for hire, the one who did the hiring is guilty of the financial gain special circumstance only as an accomplice. (See, e.g., People v. Bigelow, supra, 37 Cal.3d at p. 750, fn. 11 [construing the 1978 law].) Moreover, in this case, before defendant could be found subject to the financial gain special circumstance as an accomplice, the jury was required to find that defendant had the intent to kill. (See People v. Anderson (1987) 43 Cal.3d 1104, 1142 [240 Cal.Rptr. 585, 742 P.2d 1306] [“. . .

section 190.2(

b) lays down a special rule for a certain class of first degree murderers; if the defendant is guilty as an aider and abetter, he must be proved to have acted with intent to kill before any special circumstance (with the exception of a prior murder conviction) can be found true.”].) There was thus no error in the trial court’s instructions on this score. 8. Insufficiency of the evidence to sustain a finding of the financial gain special circumstance.

Linked to defendant’s claim of instructional error with respect to the financial gain special circumstance is the related claim that the evidence failed to establish that Esther Alvarado was murdered for financial gain. He relies on several dictionary

definitions in support of the proposition that the receipt by Hernandez of drugs in exchange for his agreement to murder Esther does not fall within the meaning of the word “financial.” Alternatively, he contends that the special circumstance should not be applied, except where the monetary value of the thing exchanged is “substantial.” Almost from its inception as part of the 1978 Briggs Initiative, we have construed the financial gain special circumstance to be at least as broad as, if not broader than, the predecessor 1977 provision. In People v.

Howard (1988) 44 Cal.3d 375 [243 Cal.Rptr. 842, 749 P.2d 279], we contrasted the somewhat limiting language of the predecessor financial-gain special-circumstances statute (which required that the killing be “ ‘carried out pursuant to agreement [by the killer] to accept a valuable consideration for the act of murder . . . .’ ”) with the current, 1978-enacted version, before concluding that “[t]he phrase is not a technical one .... [T]he statutory language . . . indicates that it was intended to cover a broad range of situations.” (Id. at pp. 408, 410.) Given our conclusion that the current version was not intended by the voters to reduce the scope of the preceding “valuable consideration” version of the financial gain special circumstance provision, defendant’s argument collapses.

Here, as in People v. Howard, supra, 44 Cal.3d 375, and People v. Noguera (1992) 4 Cal.4th 599 [15 Cal.Rptr.2d 400, 842 P.2d 1160], there was no need for further refinement or restrictive

interpretation of the financial gain special circumstance. We add only that, as a matter of both penal policy and practical concern, it makes little difference whether the coin of the bargain is money or something else of value: the vice of the agreement is the same, the calculated hiring of another to commit premeditated murder. For related reasons, defendant’s contention that we should gloss the financial-gain special-circumstance provision to require the exchange of “objects of substantial monetary value” also fails.

Apart from relying on a dictionary definition of “financial,” defendant cites no authority supporting such a proposition. Again, we see little moral distinction between hiring a contract killer for, say, $10,000, and hiring a drug user who agrees to do the same work for $200 worth of heroin and cocaine. Indeed, as the prosecution points out, given Hernandez’s dependence on narcotics, defendant and Prado were able to achieve their aim of eliminating Esther at a bargain rate.

That is hardly a persuasive reason for holding that the financial gain special circumstance should not apply to defendant and we decline to do so. 9. Erroneous “financial gain” special circumstance jury instructions under the facts of this case. Defendant’s final assault on the financial gain special circumstance is the argument that, under the facts of this case, the trial court erred in not specially instructing the jury on the elements of financial gain.

Defendant recognizes that in several cases we have held that no instruction is required beyond a reading of the language of the statute itself. (See, e.g., People v. Howard, supra, 44 Cal.3d 375; People v. Noguera, supra, 4 Cal.4th 599; People v. Edelbacher, supra, Al Cal.3d 983.) He contends, however, that under the “unique” facts of this case, where only small quantities of drugs were passed from Brenda Prado to Hernandez and were “used to satisfy a physical craving,” the purported gain was not a financial one.

As explained above, however, because we reject defendant’s argument that the financial gain special circumstance should turn on the monetary value of the thing exchanged, we must likewise reject this claim, dependent as it is on the antecedent argument. II. Denial of Effective Assistance of Counsel A substantial part of defendant’s brief in support of reversal is devoted to multiple claims that his counsel provided constitutionally ineffective assistance at both the guilt and penalty phases of the trial.

Before addressing these points in turn, we summarize briefly the legal standard under which Sixth Amendment claims of ineffective assistance are evaluated. The touchstone for evaluating such claims remains that enunciated by the United States Supreme Court in Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052] (Strickland,). The right of a defendant in a criminal proceeding to counsel “ ‘is the right to the effective assistance of counsel.’ ” (Id. at p. 686 [80 L.Ed.2d at p. 692], quoting McMann v.

Richardson (1970) 397 U.S. 759, 771, fn. 14 [25 L.Ed.2d 763, 773, 90 S.Ct. 1441].) In implementing that right, the high court has said that the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (466 U.S. at p. 686 [80 L.Ed.2d at pp. 692-693].) “[C]ounsel is strongly presumed to have rendered adequate assistance,” the Strickland court wrote, “and made all significant decisions in the exercise of reasonable professional judgment.” (466 U.S. at p. 690 [80 L.Ed.2d at p. 695].) The inquiry has two components.

As we recently summarized the standard under which such claims are evaluated, “a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.

Moreover, ‘ “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” [Citation.]”’ (People v.

Rodrigues (1994) 8 Cal.4th 1060, 1126 [36 Cal.Rptr.2d 235, 885 P.2d 1], italics in original.) Hindsight is “highly deferential.” (Strickland, supra, 466 U.S. at p. 689 [80 L.Ed.2d at pp. 694-695].) “In evaluating defendant’s showing we accord great deference to the tactical decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel to “defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial (In re Fields (1990) 51 Cal.3d 1063, 1069-1070 [275 Cal.Rptr. 384, 800 P.2d 862].) Finally, to succeed, the defendant “ ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (Id. at p. 1070, quoting Strickland, supra, 466 U.S. at pp. 693-694 [80 L.Ed.2d at pp. 697-698].) 1. Claims of ineffective assistance of counsel at the guilt phase. a. Failure to object to testimony regarding a prior inconsistent statement of Arthur Padilla. As noted, in the course of presenting its case, the prosecution called Arthur Padilla, purportedly to testify concerning an incident in which defendant had beaten up Esther Alvarado only a week or so before her death.

However, Padilla, a prison inmate, failed to respond directly to any questions beyond his name, the fact that he had been convicted of burglary, was incarcerated, had once “driven through” the town of Grayson, and had known “Goosey” Alvarado. Beyond these bare facts, Padilla was unforthcoming, to put it mildly, often asserting a near total failure of memory. The prosecution then called Raul DeLeon, a detective with the Stanislaus County Sheriff’s Department. DeLeon testified to an encounter with Arthur Padilla in jail in September of 1988.

In the ensuing conversation, DeLeon testified, Padilla told him that he was facing nine years in prison on multiple burglary charges and had information relevant to the Alvarado murder inquiry which he wanted to pass on. He then described an incident that occurred about a week before Esther Alvarado was murdered in which he and Esther, whom Padilla described as a “good friend,” had arrived at defendant’s house only to have Esther set upon by defendant and an unidentified woman.

The two beat Esther until Brenda Prado came out of the house and interceded, telling Arthur Padilla to, in DeLeon’s words, “get her [Esther] out of there or . . . she was going to be killed, or they were going to kill her.” Defense counsel raised no objection to DeLeon’s testimony, an omission that defendant now attacks as constituting constitutionally ineffective representation.

As indicated, however, prior to Detective DeLeon’s testimony and out of the presence of the jury, both counsel and the trial judge discussed at length the admissibility of DeLeon’s testimony as relating a prior inconsistent statement of Arthur Padilla. Defense counsel objected vigorously to the admission of such testimony before being overruled. Given that the defense had already attempted, unsuccessfully, to prevent the introduction of DeLeon’s testimony, it would have been futile for him to once again lodge an objection. Defense counsel was thus not ineffective on this score. b.

Failure to move to exclude or limit use of evidence that the murder weapon was found in the possession of Brenda Prado, defendant’s coconspirator. At the guilt phase of defendant’s trial, the prosecution called as a witness Valerie Castillo, one of Brenda Prado’s daughters. She told the jury that several months after Esther’s death, she had moved, together with her mother and several other children, from Grayson to Spencer, Oklahoma. While sharing a house in Spencer with Valerie, Brenda had slept on a fold-out couch.

In October of 1988, Valerie had found, hidden in the springs of the couch, a sawed-off shotgun which she turned over to Spencer police officers. At trial, the gun was admitted into evidence, along with the opinion of a ballistics expert to the effect that the results of a test firing of the weapon matched the characteristics of the bullet that caused the wound in Esther Alvarado’s chest. It is on the basis of this evidence and testimony that defendant argues that trial counsel’s failure to seek the exclusion or limit the use of the murder weapon amounted to incompetent representation.

He relies on what he asserts is the proposition that, although the acts and statements of one conspirator in furtherance of the object of the conspiracy are admissible against all members of the conspiracy, acts or statements made after the object of the conspiracy has been achieved are not subject to the rule of cross-admissibility, citing People v. Leach (1975) 15 Cal.3d 419, 432-442 [124 Cal.Rptr. 752, 541 P.2d 296] and People v. Saling (1972) 7 Cal.3d 844, 852-853 [103 Cal.Rptr. 698, 500 P.2d 610].

These cases, however, deal with the well-known coconspirator exception to the hearsay rule embodied in Evidence Code

section 1223; they do not impose any limitation on the cross-admissibility of acts by a coconspirator. Valerie’s testimony allowed the jury to infer, defendant argues, Brenda’s conduct in hiding the shotgun well after the object of the conspiracy—the murder of Esther—had been accomplished. By permitting, without objection, the shotgun to be introduced into evidence, along with Valerie’s testimony regarding the circumstances of its discovery, defense counsel abetted a breach of the rule against cross-admissibility of coconspirator acts or statements once the conspiracy had terminated.

Defense counsel was not ineffective in not seeking a limitation on the admissibility of the shotgun or of Valerie’s related testimony. At the outset, it is worth noting that defense counsel successfully moved prior to trial for an order excluding any statements by Prado concerning the murder weapon precisely on the ground that such admissions would be outside the scope of Evidence Code

section 1223 and thus inadmissible hearsay. The admission of the shotgun (and of Valerie Castillo’s testimony recounting the circumstances surrounding its discovery) was just that—the introduction of an item of physical evidence which was obviously relevant to the prosecution’s case, especially so in light of Anthony Ybarra’s testimony detailing the conspiracy between defendant, Brenda Prado, and Jesse Hernandez to murder Esther Alvarado, and the testimony of a police ballistics expert that the shotgun was the murder weapon.

Its admission into evidence did not violate the rule against the cross-admissibility of statements of coconspirators after the object of their agreement has been accomplished. The shotgun was admitted into evidence as the murder weapon itself, vouched for by the testimony of a ballistics expert as the gun that likely fired the bullet that killed Esther Alvarado. It is not unlikely—indeed it is highly probable—that the jury inferred from the evidence surrounding the recovery of the shotgun that Brenda Prado had hidden it there; certainly the prosecutor’s closing remarks invited such a conclusion.

But the bar on the cross-admissibility of a coconspirator’s statements made after the conspiracy has terminated does not bar the admission of a murder weapon found in the possession of one of the conspirators under circumstances that link it to the defendant. The admission of the shotgun, together with Valerie Castillo’s testimony as to the circumstances of its discovery, thus did not run afoul of the rule against the cross-admissibility of a coconspirator’s statements.

The prosecutor’s comments in his closing argument, regarding the strength of any inferences that might be drawn as they bore on the government’s theory of the case, were just that— comments on the evidence, and nothing more. Defense counsel was not ineffective in not moving to exclude the shotgun or not seeking a limiting instruction regarding its admissibility. c. Failure to object to comments by the prosecutor and to associated instances of alleged prosecutorial misconduct in the guilt phase.

Several of defendant’s claims of ineffective representation by trial counsel at both the guilt and penalty phases of his trial are tethered to underlying claims of misconduct on the part of the prosecutor at trial. He contends, in other words, that the failure of defense counsel to interpose objections to multiple instances of prosecutorial misconduct amounted to constitutionally ineffective representation. Before considering these claims as they relate to the guilt phase in detail, we summarize the law relating to prosecutorial misconduct and the standard under which such claims are judged.

We recently reviewed the principles governing findings of prosecutorial misconduct in People v. Gionis, supra, 9 Cal.4th 1196, an opinion which itself canvassed recent decisions of this court on the subject. (Id. at pp. 1214-1219.) There we noted that, in order to make out a federal constitutional violation based on the conduct of the prosecution, a defendant must establish that the challenged conduct “ ‘comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” . . .’” (Id. at p. 1214, quoting People v.

Harris (1989) 47 Cal.3d 1047, 1084 [255 Cal.Rptr. 352, 767 P.2d 619]; see also People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610] [“. . . a prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury. . . . But the defendant need not show that the prosecu

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