THE PEOPLE, Plaintiff and Respondent, v. LARRY DOUGLAS LUCAS, Defendant and Appellant, 12 Cal. 4th 415

Opinion LUCAS, C. J. Defendant Larry Douglas Lucas appeals from the judgment of the Los Angeles County Superior Court imposing the death penalty following his conviction by jury of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated) and burglary (§ 459), as well as two special-circumstance findings-multiple murder (§ 190.2, subd. (a)(3)) and burglary murder (id., subd. (a) (17)(vii)).

After the jury’s death penalty verdict, the trial court denied defendant’s motion for new trial and the automatic motion to modify penalty. (§ 190.4, subd. (e).) Appeal to this court is automatic. (§ 1239, subd. (b) .) I. Facts On October 15, 1986, a letter carrier saw victim Edwin Marriott alive and well. The next day when she tried to deliver mail, the screen door of his house covered the mail slot and no one came to the door to answer her ring, both unusual circumstances. The letter carrier became concerned when the Marriotts failed to come to the door to receive their mail for several days thereafter.

She contacted a neighbor, who called the victims’ daughter. Inspection of the home disclosed the bodies of the victims, Edwin and Mary Marriott, aged respectively 85 and 75. They had suffered multiple stab wounds and blunt force traumas. Mary Marriott was found in her nightgown in the south bedroom. There was blood along the east wall of the bedroom and four bloody finger marks on her bedroom door. A bloody folding knife with a bent tip was found under a pile of bedding and debris. Edwin Marriott was found in the doorway of the north bedroom.

There was a bloodstain in the center of the door and bloodstains on a drawer found on the floor of the bedroom. A lamp base and shade on the bedroom floor had bloodstains on them, as did clothing found in the closet. There was a bloody residue in the sink in the sole bathroom of the house and there was also a bloody footprint on the floor. The Marriott home, usually kept in impeccable order, was strewn with upturned drawers and blood-smeared objects. In the hallway between the bedrooms was a jewelry box with costume jewelry nearby.

A window shade in the front of the house, stained with blood, was folded back, affording a view of the street. A kitchen drawer was pulled out and stained with blood, as were some of the kitchen cabinets. There were bloody footprints in the kitchen. A small tack hammer with a broken head was found in the kitchen. A key ring with keys was found in a planter outside the kitchen door. The back door of the home, leading into the kitchen, was open and glass from the door was broken out. The back door had a deadbolt requiring a key to open it from either side.

There was broken glass both inside the kitchen and outside on the porch area and lawn. The screen door on the back porch was tom above the lock and handle. Blood drops led from the kitchen to the driveway of defendant’s residence next door. There were blood drops on the sidewalk, a smear of blood on the wall of defendant’s garage and some blood on the gate latch leading toward the backyard of defendant’s home. A search of defendant’s home produced a pair of jeans and boxer shorts with blood on them.

Defendant’s fingerprints matched those on the jewelry box and another small cardboard box found inside the Marriott home. Blood found on various items in the Marriott home was consistent with defendant’s blood but not with that of the victims. Blood on the jeans found in defendant’s home was consistent with defendant’s blood, while the blood on the boxer shorts found inside the jeans was consistent with Edwin Marriott’s blood but not with defendant’s. Defendant produced evidence that he was arrested for being under the influence of drugs on the day the bodies were discovered.

At that time he had multiple puncture marks on his arm, some fresh, some older. Defendant also produced the testimony of his employer, who saw him around 10 p.m. on October 15, 1986, the date of the murders. The employer, Mr. Perez, testified he saw defendant with two unfamiliar men, clearly “under the influence of something.” Defendant’s hands were shaking as if he were dribbling a basketball and he seemed “hyperactive.” Defendant testified that he had lived next door to the Marriotts for many years.

He stated that on October 15, 1986, having received a cash payment from his employer, he spent the day with two men, Croffoot and Sandoval, injecting crystal methamphetamine, cocaine and finally heroin in large quantities. Ultimately defendant passed out, and could only recall standing in a dark hall, with faces like “waxy fright masks” coming at him. He tried to push them away and struck at them. He ran, looking over his shoulder. He remembered driving, but could not recall where. He woke up at the beach. His hand was stuck to the seat of the car with blood. He washed his hands.

The right hand was cut across the first knuckle of the index finger and on the heel of the palm. He had no recollection of receiving these injuries. He continued to ingest drugs, returning home on one occasion to obtain funds from his wife. He had no recollection of any “problem” with the Marriotts. He had no reason or desire to kill the Marriotts, and no need to enter their home to obtain money for drugs. He identified the jeans found in his home as his, but was not sure the boxer shorts found inside them were his.

In rebuttal, officers who interrogated defendant after his arrest testified that defendant identified the bloody folding knife found at the Marriotts’ home as his own. He also attempted to hide his wounded hand during the interview. When asked how the Marriotts’ back door window was broken, defendant told the officers he broke the window and took the glass out of the panel. He admitted cutting himself inside the Marriott home, but did not admit killing the victims. In surrebuttal, defendant said he kept his hands in his pockets during the jail interview in compliance with jail rules.

He stated that the officers’ questioning focused on a man named Randy Norris, and that one officer threatened him with the death penalty when he requested an attorney. He merely stated the knife found at the scene was similar to one of his own. He did not admit breaking the window of the back door of the Marriott house and cutting his hand there. He was sick during the interview because he was withdrawing from drugs and had a kidney infection. In further rebuttal, the interrogating officers denied threatening defendant with the death penalty and said the interview stopped when defendant asked for an attorney.

Defendant told them “they" (apparently referring to himself and an accomplice) had used a key to unlock the deadbolt on the Marriotts’ back door. At the penalty trial, the People offered evidence that when a babysitter defendant had employed approached him about being paid, defendant accused her of stealing his marijuana, punched her, and knocked her off his porch. He also threatened to hire someone to kill her. This conduct resulted in a conviction for assault with a deadly weapon. Defendant offered no evidence at the penalty trial, having called only his wife, who invoked the marital privilege.

The trial court expressed great concern over this development, and caused defendant and counsel to present their tactical reasons for the decision to present no evidence at an ex parte hearing before another judge, the transcript of which was ordered sealed. The trial court confirmed that the court in the closed hearing had determined that counsel had consulted 12 or 13 witnesses, and had a tactical reason not to call any witnesses at the penalty trial.

The court also obtained defendant’s personal, on-the-record waiver of his right to testify at the penalty trial as well as his statement that he concurred in counsel’s decision to present no evidence at that phase of trial. The jury returned a verdict of death. II. Guilt Trial Issues A. Ineffective assistant of counsel. Defendant claims he was deprived of the right to effective assistance of counsel, as guaranteed by the Sixth Amendment to the federal Constitution and by

article I,

section 15 of the California Constitution. He cites several instances of alleged incompetence. The law governing defendant’s claim is settled. “A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) ‘Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 575 [280 Cal.Rptr. 631, 809 P.2d 290], quoting People v.

Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839], italics in original.) It is defendant’s burden to demonstrate the inadequacy of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1] (Pope).) We have summarized defendant’s burden as follows: “ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v.

Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 687-688, 104 S.Ct. 2052] [(Strickland)]] Pope, supra, 23 Cal.3d at pp. 423-425.) Second, he must also show prejudice flowing from counsel’s performance or lack thereof. (Strickland, supra, 466 U.S. at pp. 691-692 [80 L.Ed.2d at pp. 695-696].) Prejudice is shown when 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.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833 [21 Cal.Rptr.2d 373, 855 P.2d 391].) Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412 [276 Cal.Rptr. 731, 802 P.2d 221]), and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v.

Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694, 104 S.Ct. 2052] (Strickland).) Defendant’s burden is difficult to carry on direct appeal, as we have observed: “ ‘Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 980 [17 Cal.Rptr.2d 122, 846 P.2d 704].) With these rules in mind, we examine defendant’s claims of ineffective assistance. 1. Motion to exclude defendant’s statements.

Defendant claims counsel performed incompetently because, although they moved to exclude his statements to the police on the ground those statements were taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] (Miranda), they improperly waived the additional claim that the statements were involuntary or unreliable.

Defendant also argues counsel erred in calling him to the stand to testify at trial, observing that because the incriminating statements had not been offered in the prosecutor’s case-in-chief, defendant’s trial testimony subjected him to impeachment with the pretrial statements. The record discloses the following factual basis for defendant’s claim. Los Angeles County Deputy Sheriff Kushner testified that at the time of defendant’s confinement at the Santa Ana County jail, defendant admitted he broke the rear door window of the Marriott house and cut his hand inside the home.

He also said a photograph of the murder weapon depicted his own knife. Defendant moved, pursuant to

section 402 of the Evidence Code, to exclude these statements. As discussed below, the court denied the motion, and the statements were introduced in rebuttal after defendant testified that he had no recollection of being in the Marriott home. Defendant’s written motion to exclude the statements asserted he was questioned in violation of Miranda, supra, 384 U.S. 436 and People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625]. Defendant testified at the hearing on the motion, asserting that the deputies did not warn him of his rights under Miranda until they had interrogated him for some time.

Further, he claimed that they failed to heed his invocation of his right to counsel. He also asserted that the deputies threatened him with the death penalty and that he was undergoing drug withdrawal during the interrogation. On cross-examination, the People sought to question defendant on his pattern of drug use in the weeks before the interrogation, asserting that this evidence was necessary to rebut defendant’s claim that he was undergoing drug withdrawal during the interview. Defense counsel strenuously objected to this line of questioning, asserting that it provided improper discovery for the People.

Counsel instructed defendant not to answer the questions. The trial court’s discussion of the issue is somewhat obscure. At one point the court overruled defendant’s objection and threatened to strike defendant’s testimony unless he answered the questions. Alternatively, the court suggested it would force counsel to withdraw the exclusion motion. Defense counsel responded that the issue of defendant’s drug use before the interrogation had nothing to do with the question whether the officers advised him of his rights or heeded his request to cease the questioning until counsel could be appointed.

Rather, counsel asserted the prosecutor’s questions were intended to provide discovery regarding defendant’s drug use. Counsel suggested the issue be limited to the question of the asserted Miranda violation, and that counsel would abandon any voluntariness claim rather than require defendant to answer questions regarding his drug use.

Although defense counsel disagreed with the court’s ruling on the scope of questioning open to the prosecutor, counsel said they would abide by the ruling, but “suggested to your honor that any testimony that he gave or any consideration of the issue of whether or not his sickness prevented him from making a valid waiver, that that not be considered or that that be deemed withdrawn.” The court suggested defendant’s entire testimony should be stricken because defendant could not insulate himself from questioning about his state of mind and ability to recall once he put those matters in issue.

By asserting that he recalled that the deputies did not advise him of his rights under Miranda before interrogating him, defendant opened the door to the prosecutor’s questioning. The court accepted the prosecutor’s suggestion that an expert in the field of narcotics addiction be called to testify-whether it would be necessary to know the pattern of defendant’s drug use for some period before the interrogation in order to know whether his drug withdrawal during the interrogation deprived him of the ability to voluntarily waive his Miranda rights. The court also vacated its earlier rulings.

The court heard the testimony of such an expert regarding the effects of drug withdrawal. Because the expert testified that drug withdrawal would have no effect on a person’s ability to perceive and recollect, the court concluded the question of drug withdrawal was entirely irrelevant to the question of the voluntariness of defendant’s statement. Therefore, the court sustained the defense objection to the People’s questions regarding defendant’s drug use before the interrogation.

Nonetheless, the prosecutor suggested, without making a particular motion, that he thought there was authority that would allow him to ask defendant about his drug use in order to explore defendant’s memory of the interrogation. The court apparently was still troubled by defendant’s refusal to testify on the question of his drug use, for a little later in the proceedings, referring to the motion pursuant to Evidence Code

section 402, the court noted it had asked counsel to review the case law regarding a witness’s refusal to answer questions on cross-examination. “Mr.

Lucas has refused to answer certain questions regarding substance abuse, the question becomes whether the court strikes any of his testimony, part of his testimony, or all of his testimony.” Referring to cases in which courts refused to strike the witness’s testimony when the questions the witness failed or refused to answer on cross-examination were not material, the court decided to strike a limited portion of defendant’s direct examination for the purpose of ruling on the motion to exclude the statements. “It would be the court’s intended ruling to strike from any consideration of the free and voluntariness of the confession anything relating to alleged illness, under the influence of any kind of controlled substance, any nausea, anything whatsoever that would be related to or affected by the use of controlled substances and that in fact subject to either counsel arguing would be the court’s ruling, leave the balance of the testimony going to whether or not the defendant was properly advised at a certain stage of the proceedings. ...

In other words, anything relating to his state of mind because of the alleged use of narcotics is stricken because the defense—Mr. Lucas is refusing to answer those questions. . . .” The court concluded it “did what [defense counsel] asked”— apparently referring to counsel’s decision to waive the voluntariness claim rather than direct defendant to answer questions regarding his drug use in the period before his interrogation. On appeal, defendant concedes defense counsel waived his claim that the statements to the police were involuntary, but he argues that the decision to waive the claim was incompetent.

He maintains that counsel should not have objected to the prosecutor’s questions regarding his earlier drug use, and that counsel should have pursued the claim that defendant’s statements were involuntary as the product of drug withdrawal. He argues there could be no rational tactical basis for counsel’s waiver of the voluntariness claim, as any evidence produced regarding defendant’s earlier drug use could only have supported defendant’s defense at trial that he killed in a drug-induced stupor. Evidently trial counsel thought otherwise.

The record clearly demonstrates counsel feared that an exploration of defendant’s use of drugs before the interrogation could provide the prosecution with damaging evidence. Although the court assured counsel that broad questions about defendant’s activities and companions in the weeks before the crime would not be permitted under the guise of questioning about drug use, counsel reasonably may have feared that even narrow questions would produce damaging evidence.

Counsel might have feared, for example, that such questioning would provide the prosecution with information leading to evidence that would be useful to rebut defendant’s claim that he was under the influence of drugs or alcohol at the time of the crime—evidence that would undercut his defense. Further, upon reflection, counsel may reasonably have concluded that a claim that defendant was under the influence of drugs or drug withdrawal at the time of the interrogation was an expendable or even counterproductive argument.

Such an argument actually tended to undercut defendant’s claim that his statement was the product of a Miranda violation, because it would throw doubt on the reliability of his testimony that he recalled that the officers failed to provide the Miranda warnings and failed to heed his invocation of his right to counsel. In addition, although there was some evidence defendant’s pupils were dilated at the time of the interview, a circumstance consistent with narcotics withdrawal, defendant’s own testimony did not suggest his mind was clouded by drug withdrawal during that time.

Nor does it appear from the appellate record that counsel’s waiver was based on ignorance or misinterpretation of applicable law. (Cf. In re Wilson (1992) 3 Cal.4th 945, 949-950 [13 Cal.Rptr.2d 269, 838 P.2d 1222] [on collateral attack, defendant demonstrated counsel’s failure to object based on misunderstanding of Massiah v. United States (1964) 377 U.S. 201 (12 L.Ed.2d 246, 84 S.Ct. 1199)].) We cannot conclude on this record that counsel’s fears were unfounded, or that no rational tactical basis supported the decision to waive the voluntariness claim. (See People v.

Zapien, supra, 4 Cal.4th at p. 980.) Defendant also argues trial counsel should have pursued a claim that defendant’s statements were involuntary because they were induced by a threat of the death penalty, pointing to defendant’s testimony regarding such threats, and Detective Kushner’s testimony that he might have told defendant it was a death penalty case and that it was conceivable, though doubtful, that he told defendant he was going to the gas chamber.

Our reading of the record indicates that although counsel initially did seek to exclude the statements on the ground they were involuntary because they occurred during drug withdrawal, counsel never made the argument that they should be suppressed because they were the product of a threat of the death penalty. The question remains whether counsel’s failure to make the argument was incompetent representation. A statement extracted by official coercion or threat is involuntary and inadmissible under the due process clauses of the state and federal Constitutions. (People v.

Benson (1990) 52 Cal.3d 754, 778 [276 Cal.Rptr. 827, 802 P.2d 330].) The statement is involuntary only if the threat actually induces defendant to make the statement. {Id. at pp. 778-779.) Had counsel challenged the statement on the ground it was induced by threat, it would have been the People’s burden to establish the voluntariness of the statements. (People v. Markham (1989) 49 Cal.3d 63, 71 [260 Cal.Rptr. 273, 775 P.2d 1042].) The record is silent as to counsel’s reasons for failing to challenge the statements on the ground they were induced by threat of the death penalty.

Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions. (People v. Zapien, supra, 4 Cal.4th at p. 980.) Here, the record does not demonstrate there could be no rational tactical reason for the omission. Counsel may have concluded there was little or no basis for the claim because it did not appear from defendant’s testimony that defendant made any statements to the police after the alleged references to the death penalty, other than asking to go to the bathroom.

Nor did defendant claim the alleged threats overrode his will to resist or, indeed, caused him any particular concern. Although the People would have the burden to prove voluntariness, an attorney naturally must assess his or her client’s account of the interrogation in order to determine the plausibility of a claim that statements were involuntarily obtained. Counsel here may have concluded their client’s account would not support such a claim in this instance.

Further, in the context of the hearing, counsel were faced with the court’s threat to strike defendant’s entire testimony unless counsel abandoned the voluntariness claim. As we have noted above, counsel could reasonably decide it was more important to preserve the Miranda claim than it was to pursue the voluntariness claim on either ground asserted here. On the basis of the appellate record, we cannot say that counsel’s decision not to pursue the voluntariness claim on this basis was an incompetent one.

Defendant next claims that the failure of the deputies who questioned him to make a contemporaneous record of the interrogation, along with the paucity of the rest of the record on the voluntariness claim, would have prevented the prosecution from carrying its burden of proving voluntariness, had counsel pursued the motion to suppress the statements on that ground. Counsel were incompetent for failing to make the motion, he urges, under this state of the evidence.

The police, however, had no obligation to make a tape recording of the Miranda advisements or the rest of the interrogation, or to take notes of the interrogation, and their failure to do so did not deprive the People of the ability to establish the voluntariness of any statements. (See People v. Marshall (1990) 50 Cal.3d 907, 925 [269 Cal.Rptr. 269, 790 P.2d 676] [waiver of Miranda rights not ineffective merely because Miranda advisements and waivers not memorialized]; see also People v.

Marquez (1992) 1 Cal.4th 553, 571 [3 Cal.Rptr.2d 710, 822 P.2d 418] [same].) More significantly, we disagree with defendant’s premise that an attorney is necessarily incompetent for failing to raise the issue of voluntariness if the appellate record fails to establish the voluntariness of a statement by a preponderance of the evidence. The sparseness of the record on appeal reflects not the merits of defendant’s voluntariness claim but the reality that the issue was not fully litigated below and that the People were not put to their burden of proof.

On appeal, we do not examine the existing record to attempt to divine whether the People could have carried their burden of proof had they been put to the test. Defendant fails to recognize that the silence of the record works against him when the claim we review on appeal is not whether the statement was involuntary, but whether counsel was incompetent for failing to claim it was involuntary. Our decisions recognize counsel’s omission legitimately may have been based in part on considerations that do not appear on the record, including confidential communications from the client. (People v.

Jenkins (1975) 13 Cal.3d 749, 755 [119 Cal.Rptr. 705, 532 P.2d 857].) Accordingly, we presume counsel’s decision not to raise the claim was a reasonable, tactical one unless the record affirmatively demonstrates otherwise. (Pope, supra, 23 Cal.3d at p. 426; see also People v. Zapien, supra, 4 Cal.4th at p. 980; People v. Fosselman (1983) 33 Cal.3d 572, 581 [189 Cal.Rptr. 855, 659 P.2d 1144].) Defendant fails to persuade us that the record demonstrates counsel had no reasonable tactical basis for the decision to waive the voluntariness claim.

Defendant next argues his counsel were incompetent in deciding to call him as a witness at trial. Because the prosecutor chose not to introduce defendant’s statements to the police in the People’s case-in-chief, defendant claims that counsel should have kept him from testifying at trial in order to avoid later impeachment with the statements. Evidence of defendant’s intoxicated state could have been presented to the jury through other witnesses, defendant asserts, if only counsel had not made “mistakes of law regarding the admissibility of testimony of witnesses other than Mr. Lucas. . . .” We disagree.

Defense counsel have no power to prevent their clients from testifying. (People v. Lucky (1988) 45 Cal.3d 259, 281 [247 Cal.Rptr. 1, 753 P.2d 1052]; People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710].) We cannot tell from the record on appeal whether or not counsel advised defendant to take the stand. In any event, such advice goes to the heart of trial tactics (see People v. Frierson (1985) 39 Cal.3d 803, 814 [218 Cal.Rptr. 73, 705 P.2d 396]; People v.

Trotter (1984) 160 Cal.App.3d 1217, 1224-1225 [207 Cal.Rptr. 165]), and for that reason rarely would support a claim of ineffective assistance of counsel. 2. Boxer shorts. Defendant contends trial counsel were incompetent in failing to move to exclude from evidence a pair of bloody boxer shorts found inside some blue jeans that were seized from defendant’s residence pursuant to a search warrant. Defendant claims counsel should have moved to exclude the evidence on the ground an inadequate chain of custody had been established.

The rules for establishing chain of custody are as follows: “ ‘The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [H The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received.

Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.’ ” (People v. Diaz (1992) 3 Cal.4th 495, 559 [11 Cal.Rptr.2d 353, 834 P.2d 1171], quoting People v. Riser (1956) 47 Cal.2d 566, 580-581 [305 P.2d 1]; see also People v.

Williams (1989) 48 Cal.3d 1112, 1134 [259 Cal.Rptr. 473,11A P.2d 146].) The decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1121 [36 Cal.Rptr.2d 235, 885 P.2d 1]; People v.

Freeman (1994) 8 Cal.4th 450, 490-491 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].) The record shows that at trial, Detective Kushner testified that he personally recovered the blue jeans and boxer shorts from defendant’s house when he executed the search warrant. He noted that he only listed the jeans in the return to the search warrant, and that when he examined the jeans at the crime laboratory, he discovered the boxer shorts inside them.

As defendant points out, however, at the preliminary hearing, Kushner testified that he did not personally seize the jeans during the search of defendant’s residence. Rather, Kushner testified that during the search of defendant’s home, another deputy handed him a paper bag containing the jeans found in defendant’s residence, and Kushner found the boxer shorts inside the jeans when he and Detective Morck delivered the paper bag to the crime laboratory.

A written sheriff’s department report stated that Detective Morck submitted to the crime laboratory a bag containing the jeans and boxer shorts, and the receipt number given these items matched the receipt on the jeans and boxer shorts. A criminalist testified that the blood on the boxer shorts was consistent with the blood of victim Edwin Marriott, but not with defendant’s blood. We do not see a strong claim that counsel would have prevailed in excluding the shorts on chain of custody grounds.

Although the identity of the deputy who actually seized the blue jeans from defendant’s home is somewhat uncertain on this record, there does not appear to be much question that the sheriff’s deputies seized the jeans from defendant’s home dining the search and that thereafter Detective Kushner found the bloodstained boxer shorts inside the jeans when he turned the evidence over to the crime laboratory. Defendant identified the jeans as his.

Even if we concluded defendant is correct that there was a flaw in the chain of custody, the record does not establish that counsel were incompetent in failing to object on this ground to the admission of the evidence. “[T]he mere fact that counsel, had he [or she] chosen another path, ‘might’ have convinced the court to issue a favorable evidentiary ruling, is not enough to carry defendant’s burden of demonstrating [incompetence]. . . .” (People v.

Jennings (1991) 53 Cal.3d 334, 379 [279 Cal.Rptr. 780, 807 P.2d 1009].) Rather, as we have explained, a conviction will not be reversed unless the record on appeal demonstrates counsel had no rational purpose for the failure to object, and the failure was prejudicial. (People v. Rodrigues, supra, 8 Cal.4th at p. 1121; People v. Zapien, supra, 4 Cal.4th at p. 980.) As we observed in People v.

Diaz, supra, 3 Cal.4th 495, it is common and proper for counsel to stipulate to the chain of custody. (Id. at p. 560.) Flaws in the chain are often mere technical omissions that competent counsel may consider unworthy of extended debate. (Ibid.) In fact, an objection on chain of custody grounds may be less productive for defendant than a decision to permit the prosecutor to establish a shoddy chain of custody that can be pointed out to the jury in the hope of giving rise to a reasonable doubt.

We conclude defendant has failed to show counsel were incompetent for omitting to move to suppress the boxer shorts on chain of custody grounds. Defendant also faults counsel for failing to argue to the jury that the evidence of the boxer shorts was unreliable. We reject the claim.

Counsel did seek to undermine the impact of the boxer shorts evidence during cross-examination of prosecution witnesses by establishing that the shorts were actually discovered in the crime laboratory, not in defendant’s home, and by eliciting testimony that the blood on the shorts was consistent with the blood of four million residents of Los Angeles County. The impeachment value of these points was relatively slight, however.

We cannot fault defense counsel for failing to argue the matter in closing, when the primary defense was that defendant committed the homicides but lacked the mental state necessary to establish murder because of gross excess in ingesting drugs. (See People v. Freeman, supra, 8 Cal.4th at p. 499 [difficult to defend simultaneously on grounds of total innocence and lack of intent].) 3. Closing argument.

Defendant claims counsel’s closing argument at the guilt trial was incompetent, because counsel conceded that circumstantial evidence was as good as direct evidence, and because counsel admitted there was no other evidence available to support the defense, admitted defendant was at the crime scene and probably committed the murders, and admitted the jury’s revulsion against defendant was justified. He claims counsel could not concede defendant’s guilt without defendant’s express waiver of rights. Defense counsel must not argue against his or her client (People v.

Lang (1974) 11 Cal.3d 134, 139 [113 Cal.Rptr. 9, 520 P.2d 393]), but it is settled that it is not necessarily incompetent for an attorney to concede his or her client’s guilt of a particular offense. (People v. Cain (1995) 10 Cal.4th 1, 30 [40 Cal.Rptr.2d 481, 892 P.2d 1224]; People v. Freeman, supra, 8 Cal.4th at p. 498; People v. Mayfield (1993) 5 Cal.4th 142, 177 [19 Cal.Rptr.2d 836, 852 P.2d 331].) It is also settled that counsel’s concession of guilt on one or more charges at the guilt phase of a capital trial is not the equivalent of a guilty plea, requiring defendant’s express waiver. (People v.

Cain, supra, 10 Cal.4th at p. 30; People v. Griffin (1988) 46 Cal.3d 1011, 1029 [251 Cal.Rptr. 643, 761 P.2d 103].) We cannot say on this record counsel made an incompetent tactical choice to admit that defendant was at the scene and probably committed the homicides, but to argue his intoxication negated the mental elements necessary for felony murder or premeditated murder.

After all, defendant’s bloody fingerprint was found at the scene, defendant’s hand was cut, blood consistent with his blood, but not with the victims’, was found in their home, and a trail of blood led from the scene of the crime to defendant’s home. In addition, the bloody knife found at the scene was a knife like one defendant had owned, and blood on defendant’s clothing was consistent with the blood of one of the victims. Finally, when he was interrogated by the police, defendant admitted cutting his hand inside the victims’ house and identified the murder weapon as his own.

Given this evidence, “‘[i]t is entirely understandable that trial counsel . . . made no sweeping declarations of his client’s innocence but instead adopted a more realistic approach .... As stated in a recent case, “good trial tactics demanded complete candor” with the jury. [Citations.] Under the circumstances we cannot equate such candor with incompetence.’ ” (People v. Wright, supra, 52 Cal.3d at p. 415; see also People v. Jones (1991) 53 Cal.3d 1115, 1150 [282 Cal.Rptr. 465, 811 P.2d 757] [within permissible range of tactics for counsel to recognize weakness of defense in closing argument]; People v.

Wade (1988) 44 Cal.3d 975, 988-989 [244 Cal.Rptr. 905, 750 P.2d 794] [counsel may reasonably concede guilt and emphasize mental defenses].) Defendant claims counsel argued against him by admitting there was no “mitigating” evidence other than that presented at trial, as follows: “Do you believe for a minute if there wasn’t [sz'c] something very favorable to defendant that I wouldn’t have presented it to you?” The statement does not seem to be an argument against defendant, and in any case, defendant takes the statement out of context.

Counsel was arguing that both defense counsel’s and the prosecutor’s arguments were only their own views based on the same evidence available to the jury. Counsel pointed out that neither the prosecutor nor defense counsel had additional evidence, or they would have presented it. In this context, the challenged statement is innocuous.

Defendant also claims counsel argued against him by admitting that the photographs of the victims were gruesome and that the jury would not be human if these photographs did not cause them to feel “revulsion for what happened or an anger toward [defendant]." Again, defendant takes the statement out of context. Counsel made two legitimate points: that the jury should not allow itself to be swayed by its emotion upon viewing the photographs, and that the frenzied attack depicted in the photographs supported the mental defense counsel had offered.

Defendant also faults counsel for stating that circumstantial evidence could be more persuasive than direct evidence. Again, the context shows counsel made a proper argument that although circumstantial evidence may be reliable, if there are two reasonable inferences to be drawn from such evidence, the jury is bound to follow the inference pointing to the defendant’s innocence. In sum, the record does not support the claim that counsel’s closing argument was incompetent. Accordingly, we reject all the above claims of ineffective assistance of counsel. B. Admission of photographs.

Defendant claims the trial court erred in admitting 21 photographs of the victims’ bodies, over defense objection, without adequately performing the weighing process required by Evidence Code

section 352. He also argues the court erred in admitting the photographs, taken at the scene of the crime and at the morgue, because they were of little probative value, but were highly inflammatory. He argues finally that admission of the photographs was a violation of his right to a fair trial under the Fourteenth Amendment to the federal Constitution. Defendant claims that the trial court responded to his motion to exclude the photographs by focusing only on the question whether the photographs were material evidence. He argues that Evidence Code

section 352, under which he made the motion to exclude, requires the court to balance, on the record, the probative value of challenged evidence against its prejudicial impact. He also claims the record shows the court gave undue deference to the testimony of a prosecution expert regarding the relevance of the evidence to the prosecution case. Defendant is mistaken. As we have stated, “the trial [court] need not expressly weigh prejudice against probative value—or even expressly state that [it] has done so.” (People v.

Mickey (1991) 54 Cal.3d 612, 656 [286 Cal.Rptr. 801, 818 P.2d 84].) Here, as to the challenged evidence, the court heard extensive argument on both prejudice and probative value. The court was initially of the view that several of the photographs were “inflammatory and unduly prejudicial,” and ultimately decided that two of the photographs could be admitted only if the victim’s face was excised. The record demonstrates that the trial court “understood and fulfilled its responsibilities under Evidence Code

section 352. Nothing more was required.” (People v. Garceau (1993) 6 Cal.4th 140, 182 [24 Cal.Rptr.2d 664, 862 P.2d 664].) The record does not disclose that the court unduly deferred to the opinion of the expert. The expert, the coroner who performed the autopsies on the victims, testified outside the presence of the jury that photographs in which the images were obscured by blood would be less useful to “illustrate” his trial testimony than images in which the blood had been wiped away.

He indicated that each photograph would be valuable to demonstrate what injuries had been inflicted and how much blood was lost over what period of time. Thus, the expert offered testimony tending to show the probative value of the photographs. The court did not err in relying on the expert’s testimony for the purpose of fact finding, and it is clear from the record that the court drew its own conclusions on the ultimate question of law presented to it. Defendant argues the evidence should have been excluded because it was cumulative to the testimony of the coroner.

He adds that the evidence must have been unnecessary to illustrate the coroner’s testimony because it was admitted and submitted to the jury eight days after the coroner’s testimony. He also urges the photographs were irrelevant to the charged torture-murder special circumstance because they “merely depicted the [victims’] bodies at the crime scene.” Finally, he argues that the photographs were gruesome, graphic and inflammatory. We review the trial court’s order denying defendant’s motion to exclude the photographs pursuant to Evidence Code

section 352 for abuse of discretion. (People v. Ashmus (1991) 54 Cal.3d 932, 973 [2 Cal.Rptr.2d 112, 820 P.2d 214].) As we have explained, “a trial court has broad discretion in determining the admissibility of murder victim photographs in the face of a claim . . . they are unduly gruesome or inflammatory.” (People v. Wilson (1992) 3 Cal.4th 926, 938 [13 Cal.Rptr.2d 259, 838 P.2d 1212].) We see no abuse of discretion here. We have viewed the photographs. The photographs admitted at trial are small. They are rather clinical in appearance, and are not unduly gruesome.

Both the prosecutor and defense counsel cautioned the jury against being swayed by passion upon viewing the photographs. We do not believe that their number, though relatively large, created such a cumulatively prejudicial impact that it was an abuse of discretion to admit them. The photographs were relevant to corroborate and illustrate the testimony of the coroner concerning the number and nature of the wounds and to corroborate the testimony of other witnesses regarding the location and placement of the bodies. (People v.

Allen (1986) 42 Cal.3d 1222, 1256 [232 Cal.Rptr. 849, 729 P.2d 115].) Though the photographs were not actually shown to the jury during the coroner’s testimony, they were independently admissible on the issues of identity, intent to kill, deliberation and the torture element of the torture-murder special circumstance. (See, e.g., People v. Cain, supra, 10 Cal.4th at p. 29 [photographs of victims’ wounds relevant to identity, intent to kill, and murder in commission of robbery and rape]; People v.

Wash (1993) 6 Cal.4th 215, 245-246 [24 Cal.Rptr.2d 421, 861 P.2d 1107] [photographs relevant to show deliberation and rape; not cumulative of testimony of crime scene expert and pathologist]; People v. Garceau, supra, 6 Cal.4th at p. 181 [photographs of victims’ wounds relevant to show malice]; People v. Pride (1992) 3 Cal.4th 195, 243 [10 Cal.Rptr.2d 636, 833 P.2d 643] [same].) They were also useful in the jury’s evaluation of the coroner’s testimony (People v. Cain, supra, 10 Cal.4th at p. 29), whether or not they were shown to the jury during his testimony.

That they may have been somewhat cumulative is not determinative: “[w]e repeatedly have rejected the argument photographs of a murder victim should be excluded as cumulative if the photographs are offered to prove facts established by testimony.” (Ibid.) As the photographs were relevant and admissible, their admission in evidence does not support defendant’s due process claim. (Ibid.) C. Preclusion of defense evidence.

Defendant claims a combination of incompetence of counsel, judicial error and prosecutorial misconduct deprived him of crucial defense evidence in violation of his right to due process, a fair trial and a reliable verdict under the Sixth, Eighth and Fourteenth Amendments of the federal Constitution and parallel provisions of the California Constitution.

Specifically, he claims that defense witnesses Croffoot and Sandoval would have testified and presented evidence of his intoxication and unconsciousness at the time of the crimes had not incompetence of counsel and prosecutorial intimidation caused them to invoke their privilege against self-incrimination. Once the witnesses invoked the privilege, he claims, the court should have extended judicial immunity to assure defendant a fair trial.

Finally, defense counsel should have offered the witnesses’ out-of-court statements to a defense investigator, statements defendant claims were admissible under the hearsay exception for statements against penal interest. Defendant also claims that as a matter of due process, the evidence should have been admitted even if it was hearsay. He alleges his defense was severely compromised by the loss of independent evidence of his intoxication, evidence he claims was needed to show he lacked the specific intent necessary to establish first degree murder and burglary felony murder.

We review the factual background of the claim. The record indicates during the defense case, counsel called witness Sandoval, who began to testify that he had met defendant on the day of the crime. When counsel asked Sandoval whether he had been in possession of a controlled substance, namely cocaine, at the time, the court interrupted and asked whether the witness should be advised of his privilege against self-incrimination. The prosecutor noted that he had some “additional information” that should be discussed outside the presence of the jury.

Defense counsel offered to ask the witness whether he had counsel with whom he had discussed his testimony. Outside the presence of the jury, defense counsel stated the witness had been advised by the public defender, and the court asked that the public defender be present. The prosecutor added, “Your honor, it’s also my information, hearsay but my information nonetheless that Mr. Sandoval was convicted on January the 20th of this year of sale of PCP and sentenced to four years in state prison, [f] I don’t know if that’s true or not. I notice he came in the public door rather than the private door.

I don’t know if that case is back—” Defense counsel interjected: “You know those early parole problems.” The prosecutor continued: “I also have a copy of the police report [in] which he is one of the named suspects in a conspiracy to defraud by means of bad checks. At one point it was our belief there was a warrant for his arrest on that and I don’t know if there is a warrant in the system now or not.” The court noted that the witness’s counsel was unavailable until the following week. The prosecutor suggested: “Why don’t we excuse ourselves, you and Mr. Sandoval have a little chat. It may be that Mr.

Sandoval voluntarily can convince you there’s no danger of him implicating himself . . . .” The court accepted the suggestion and spoke with the witness in an in camera session the transcript of which was sealed. After this discussion, the court ordered the witness to consult with an attorney in the public defender’s office and return the following day. Sandoval failed to appear the following day and therefore the court issued a bench warrant for his arrest. The prosecutor asked for a copy of the warrant to enable local police to try to secure Sandoval’s appearance in court.

Defense counsel accepted the prosecutor’s offer of police assistance. Apparently Sandoval failed to appear because he was arrested on an outstanding warrant (not the bench warrant) the day he was to appear. Next, defense counsel proposed to call Croffoot to testify about being with defendant for part of the evening of the crime and either using narcotics or seeing them being used. The court had expressed some concern that this witness, too, should have independent counsel, and secured counsel for the witness.

At an in camera hearing, the court announced that counsel had been procured for Croffoot, noting that he was speaking euphemistically in stating that Counsel Ayers had “volunteered” to advise Croffoot. Defendant claims the attorney was dragooned from those waiting in the courtroom, but the record sheds no further light on the subject. The following colloquy ensued: “The Court: [Mr. Ayers has volunteered to advise Mr. Croffoot] regarding his constitutional rights as he is the next intended witness and he was going to testify as I kind of surmise that he was with Mr.

Lucas part of the evening in question and was either using narcotics or saw narcotics being used or something to that nature, without going into it in detail, [f] Have you had a chance to interview him? “Mr. Ayers: Yes. “Mr. Watson [the prosecutor]: Can I interrupt the court and counsel, and I apologize. I think the record should further reflect I had a chance to talk to Mr. Ayers in the presence of both defense attorneys to impart to him some information about the status of our case, where we are, what’s going on.

I told him a little about [Sandoval] and then the defense attorneys had a chance to consult with him without me being present, and I didn’t tell them one thing that I should tell him, and he may already know it, I don’t know.” The prosecutor then informed Croffoot’s counsel that evidence received at trial indicated Croffoot may have been with defendant up to half an hour before the crimes.

He added: “[T]here is no evidence more than one person did it, but, you know, that’s obviously open to speculation.” The court asked Ayers whether he had consulted with Croffoot, and Ayers responded: “I have talked to Mr. [Croffoot]. From things he has told me about his personal situation I have advised him to invoke [the privilege against self-incrimination].” Croffoot was called to the stand, and outside the presence of the jury, defense counsel asked him whether he had seen Sandoval and defendant on the date of the crime. He refused to answer.

He also invoked the privilege as to questions about what he did all that day, and about the use of controlled substances on that day with defendant and Sandoval. He also invoked the privilege as to questions regarding his activities with Sandoval and defendant up to 10 or 11 o’clock on the night of the crime. The court sustained the exercise of the privilege. Defense counsel moved for a mistrial. Counsel noted that the court had an interview with Sandoval out of counsel’s presence, assigned him a new public defender, and that Sandoval had disappeared. Croffoot was on probation for a misdemeanor.

Defense counsel argued that these witnesses were critical to the defense, that if a mistrial were declared, Sandoval could be apprehended and Croffoot could finish his probationary period. Counsel also pointed out the prosecutor could grant immunity, and claimed the witnesses were unlikely actually to be prosecuted for material in their testimony. The prosecutor responded that the witnesses might incriminate themselves, not for drug charges, but for being accomplices, since an independent witness saw them with defendant near the time of the crime.

The court found both witnesses had exercised their Fifth Amendment right to remain silent, Sandoval partly by “footwork.” The court denied the motion for mistrial, saying defendant would not benefit from any delay because no competent attorney would advise these witnesses to testify, as they apparently were with defendant up until moments before the crime.

Then Sandoval appeared, and outside the presence of the jury, responded to defense counsel’s question whether he could answer a series of questions relating to his activities on October 15, 1986, in the company of Croffoot and defendant, and about the use of drugs and “various other activities” that day. Sandoval announced that he would refuse to answer on the ground the answers would tend to incriminate him. 1. Defense counsel’s questioning.

Defendant claims his counsel were incompetent because they failed to secure the admission of the testimony of witnesses Sandoval and Croffoot regarding defendant’s drug use in the hours before the crime. As noted above, these defense witnesses asserted the Fifth Amendment privilege against self-incrimination.

Defendant faults counsel for failing to demonstrate to the trial court that the defense could propound specific questions regarding the witnesses’ observation of defendant’s drug and alcohol use on the day of the crimes that would not have focused on the witness’s activities and hence would not have implicated the witnesses’ Fifth Amendment rights. Through such a course, he claims, counsel could have secured essential evidence in support of defendant’s claim of intoxication and unconsciousness.

Defendant’s claim depends on the assumption the court would have required the witnesses to answer questions regarding their observation of defendant’s activities. His claim is speculative. He does not state what questions should have been asked, nor can he, on the appellate record, establish what the answers would have been to more specific questions. Moreover, he cannot demonstrate the court would have or should have required the witnesses to answer questions directed to their observations of defendant, as opposed to those directed to the witnesses’ own activities.

As we explain, the court could reasonably conclude the proposed testimony might tend to incriminate the witnesses. Defendant’s claim depends upon an unduly restrictive view of the privilege against self-incrimination. Witnesses may refuse to answer questions calling for a potential link in a chain of evidence of guilt, as well as questions calling for clear admissions against penal interest. (People v. Cudjo (1993) 6 Cal.4th 585, 616 [25 Cal.Rptr.2d 390, 863 P.2d 635]; People v.

Ford (1988) 45 Cal.3d 431, 441 [247 Cal.Rptr. 121, 754 P.2d 168].) Although the court should make a particularized inquiry as to whether or not a claim of privilege is well founded (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 428 [27 Cal.Rptr.2d 204]), in order to approve invocation of the privilege “ ‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ ” (People v.

Cudjo, supra, 6 Cal.4th at p. 617, quoting Hoffman v. United States (1951) 341 U.S. 479, 486 [95 L.Ed. 1118, 1123-1124, 71 S.Ct. 814].) Innocent persons, as well as the guilty, are entitled to invoke the privilege. As the high court has declared, “‘[t]he privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.’ ” (Grunewald v. United States (1957) 353 U.S. 391, 421 [1 L.Ed.2d 931, 953, 77 S.Ct. 963]; see also Ratner, Consequences of Exercising the Privilege Against Self-Incrimination (1957) 24 U. Chi.

L.Rev. 472, 472-473.) Further, as we have noted, “our Evidence Code provides that when a witness grounds refusal to testify on the privilege against self-incrimination, a trial court may compel the witness to answer only if it ‘clearly appears to the court’ that the proposed testimony ‘cannot possibly have a tendency to incriminate the person claiming the privilege.’ (Evid. Code, § 404.)” (People v.

Cudjo, supra, 6 Cal.4th at p. 617.) Here, defendant proposed to ask the witnesses a series of questions regarding their activities with him on the date of the crime, including their use of controlled substances, their observations regarding his use of controlled substances, and their other activities together with defendant that day. Even if counsel had limited the questions to the witnesses’ observations of defendant, we cannot say on this record the court would or should have refused to permit the witnesses to invoke the privilege against self-incrimination.

Naturally, any testimony regarding the witnesses’ observation of defendant’s condition would call for cross-examination directed at the witnesses’ opportunity and ability to observe. Such questions would subject the witnesses to the same danger of self-incrimination as would the questions of defense counsel of which defendant now complains. Moreover, the prosecutor made it clear that independent witnesses placed Sandoval and Croffoot with defendant at a time close to the time of the crimes, and placed Croffoot with defendant as little as half an hour before the murders.

The prosecutor also explained that the physical evidence did not rule out the possibility that more than one person perpetrated the murders. Thus, not only could any question about the witnesses’ observations regarding defendant’s drug ingestion provide a link in the chain of evidence establishing their own illegal use of drugs, but, as the prosecutor chillingly pointed out, any testimony useful to establish defendant’s state of intoxication near the time of the crime could provide a link in the chain of evidence tending to incriminate the witnesses as accomplices or accessories in a double murder. (See People v.

Ford, supra, 45 Cal.3d at p. 442, fn. 7 [if no alibi defense, witness may invoke privilege regarding association with defendant prior to crime because of risk of inference of aiding and abetting the defendant].) The possibility is at best remote that had defense counsel framed their questions differently, the court would have required the witnesses to answer questions regarding their activities with defendant on the night of the crimes. Nor can we evaluate whether any alleged incompetence was prejudicial, without a record that establishes the answers to such questions. Defendant’s reliance on Brown v.

United States (1958) 356 U.S. 148 [2 L.Ed.2d 589, 78 S.Ct. 622, 72 A.L.R.2d 818] for the proposition that a witness may testify as to certain matters, but may invoke the privilege on cross-examination before the reliability of his testimony has been tested fully, is misplaced. In Brown, the court held that a defendant who took the stand in her own defense could not refuse, on the ground of the privilege against self-incrimination, to answer questions on cross-examination relevant to her testimony on direct examination.

The court reasoned that such a witness voluntarily waives the privilege when she volunteers to testify. The high court distinguished a case in which a witness compelled by subpoena to testify in a bankruptcy proceeding was permitted to invoke the privilege for the first time in cross-examination. The court pointed out that in such a case, the witness had no occasion to invoke the privilege until testimony was sought that would tend to incriminate.

At that point, the invocation had to be respected, though it would permit the witness to “withdraw from the crossfire of interrogation before the reliability of his testimony has been fully tested.” (Id. at p. 155 [2 L.Ed.2d at p. 597].) This observation is inapposite here, where our review of the record indicates that in fact, any question relevant to defendant’s defense would present a clear danger of incriminating the witnesses. The People argue defense counsel had no obligation to ask specific questions and require the witnesses to invoke the privilege as to each, citing People v.

Cornejo (1979) 92 Cal.App.3d 637, 658-659 [155 Cal.Rptr. 238].) In that case, the Court of Appeal determined the court had no obligation to require the “meaningless ritual” of asking a litany of specific questions of a witness who had made it clear he would answer no questions and would invoke the privilege as to any relevant question.

In Cornejo, the court had information before it making it plain that the witness’s federal parole prohibited him from acting as an informant, but that “[a]ll relevant questions which would have been posed to [the witness] could only have related to his activities as an informant.” (Id. at p. 658; see also People v.

Hill (1992) 3 Cal.4th 959, 991 [13 Cal.Rptr.2d 475, 839 P.2d 984] [no need to conduct meaningless ritual of requiring witness to invoke privilege before jury].) The Cornejo case is of limited relevance, however, because there was no claim, as here, that counsel was ineffective for failing to pursue a certain line of questioning that would not present a danger of incriminating the witness.

To the extent it was clear to counsel in this case, however, that the witnesses intended to invoke the privilege as to any question regarding their activities with defendant on the night of the crimes, such a circumstance does undermine defendant’s claim that counsel should have put other questions to the witnesses. 2. Prosecutorial misconduct. The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. (Crane v.

Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636, 644-645, 106 S.Ct. 2142]; In re Martin (1987) 44 Cal.3d 1, 30 [241 Cal.Rptr. 263, 744 P.2d 374].) As we have observed, “A defendant’s constitutional rights to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendant’s right to present witnesses.” (People v. Mincey (1992) 2 Cal.4th 408, 460 [6 Cal.Rptr.2d 822, 827 P.2d 388]; see also Crane v. Kentucky, supra, 476 U.S. at p. 690 [90 L.Ed.2d at pp. 644-645]; U.S. v.

Lopez-Alvarez (9th Cir. 1992) 970 F.2d 583, 588, fn. 4 [noting confusion as to whether right to present defense derives from right of confrontation or right of due process].) Defendant alleges such interference took place in this case.

To prevail in such a claim, as we have explained, he must establish three elements. “First, he must demonstrate prosecutorial misconduct, i.e., conduct that was ‘entirely unnecessary to the proper performance of the prosecutor’s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.’ ” (In re Williams (1994) 7 Cal.4th 572, 603 [29 Cal.Rptr.2d 64, 870 P.2d 1072].) Second, he must establish the prosecutor’s misconduct was a substantial cause in depriving the defendant of the witness’s testimony. (Ibid.) The defendant, however, “is not required to prove that the conduct under challenge was the ‘direct or exclusive’ cause. [Citations.] Rather, he need only show that the conduct was a substantial cause. [Citations.] The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force [citation] and is soon followed by the witness’s refusal to testify.” (In re Martin, supra, 44 Cal.3d at p. 31.) Finally, the defendant must show the testimony he was unable to present was material to his defense. (Id. at p. 32.) Defendant claims that through intimidation and threats, the prosecutor transformed Sandoval from a willing witness into one who refused to testify.

He points out that when the court first raised the question whether Sandoval should be represented by independent counsel, the prosecutor interjected the assertedly irrelevant information, in Sandoval’s presence, that Sandoval had a recent conviction for narcotics violations and was a suspect in another matter involving bad checks and might be subject to an arrest warrant. Defendant claims this amounted to a threat that if the witness should testify for the defense, “the full force of the People’s prosecutorial mechanism” would be used against him.

Defendant also refers to Sandoval’s arrest by the Whittier police, without, however, pointing to anything in the record suggesting that the prosecutor had anything to do with the arrest. The People counter that defendant waived the issue when he failed to object on the same basis below. (See People v. Benson, supra, 52 Cal.3d at p. 794 [claim of misconduct waived if no objection, unless harm could not have been cured].) Defendant argues that any failure to object establishes ineffective assistance of counsel.

Further, the claim involves a question of fundamental fairness, and any misconduct, had it existed, could not readily have been cured by the trial court’s intervention, in contrast to other instances of prosecutorial misconduct in the course of trial. Accordingly, we may reach the merits of the claim. (See, e.g., People v. Hawkins (1995) 10 Cal.4th 920, 948-949 [42 Cal.Rptr.2d 636, 897 P.2d 574]; People v. Wash, supra, 6 Cal.4th at pp. 270-271; People v.

Clark (1993) 5 Cal.4th 950, 1013 [22 Cal.Rptr.2d 689, 857 P.2d 1099].) Defendant is unable to carry the first part of his burden, that is, to show that the prosecutor acted improperly. Contrary to defendant’s argument, it is clear that the court, not the prosecutor, was the moving force in raising the issue of Sandoval’s possible self-incrimination. The court was concerned that Sandoval might incriminate himself by discussing his drug use with defendant; the prosecutor merely offered information relevant to this concern when he said the witness might have a recent narcotics conviction.

Any evidence of illegal drug use, of course, could subject such a witness to parole or probation violations. Further, the prosecutor’s comments were not threats directed to the witness. (Cf. People v. Warren (1984) 161 Cal.App.3d 961, 971-976 [207 Cal.Rptr. 912] [threat that witness would be prosecuted for any crimes revealed in testimony]; People v. Robinson (1983) 144 Cal.App.3d 962, 970 [193 Cal.Rptr. 92] [threat that charges will be filed]; United States v.

Hammond (5th Cir. 1979) 598 F.2d 1008, 1012-1013 [threat of “untoward consequences” if witnesses testified].) Nor is there any evidence the witness was arrested in connection with this case or that his arrest on an unrelated warrant was engineered by the prosecutor, or indeed, that the prosecutor even knew about it.

Thus the case is not like In re Martin, supra, 44 Cal.3d 1, in which we said the prosecutor acted improperly in causing a defense witness to be arrested as he left the stand, in an evident effort to intimidate him and prevent further testimony. (Id. at p. 35.) In sum, as the prosecutor’s comments evidently responded to a concern of the court’s, we see no indication on this record the prosecutor engaged in conduct “wholly unnecessary to the proper performance of [his] duties and of such a character as ‘to transform [the witness] from a willing witness into one who would refuse to testify.’ ” (Id. at p. 31.) Similarly, with respect to witness Croffoot, it was the court that initiated inquiry into his exercise of the privilege against self-incrimination and insisted that he consult independent counsel on the point.

The prosecutor did not address the witness or threaten prosecution, but merely pointed out to the witness’s counsel the rather obvious point that although there was no evidence that more than one person was involved in the crime, a witness who testified he was with the defendant up to half an hour before the crime could not be ruled out absolutely as an accomplice. As the court later said, no competent attorney would have advised either witness to testify. Again, we see no evidence the prosecutor acted improperly.

In any event, whether or not it was proper for the prosecutor to point out in front of the witness that the latter could not be ruled out as an accomplice under the facts of the case, it is clear that the prosecutor’s comment was not a substantial cause of the witness’s decision to refuse to testify.

Rather, the record demonstrates that before the prosecutor made the allegedly coercive statement, Croffoot’s counsel had already advised Croffoot to invoke his privilege against self-incrimination because of information Croffoot related about his “personal situation.” Defendant also claims the prosecutor committed misconduct in willfully mischaracterizing the evidence, causing Croffoot and Sandoval to refuse to testify.

Specifically, defendant claims the prosecutor argued to the court that an unidentified fingerprint at the scene of the murders might belong to Sandoval or Croffoot, whereas in his opening statement he had already told the jury there was no evidence that anyone besides defendant was present during the crimes. The statement occurred in the prosecutor’s argument to the court against the defendant’s alternative motions for a grant of immunity to Croffoot and Sandoval for possible drug offenses or a mistrial.

The court had already determined the witnesses would be permitted to invoke their privilege against self-incrimination when the prosecutor made the statement defendant complains of, so it is difficult to see how the statement can have caused the witnesses to become unavailable. Further, the prosecutor’s point to the court was that immunity for drug offenses would not suffice to secure the witnesses’ testimony because they might face liability as accomplices to the murder. He correctly argued that although there was no evidence of their participation, they could not be ruled out as participants.

We see no mischaracterization of the evidence. Further, the court had heard the prosecution evidence and was quite capable of evaluating it. Defendant may be understood to argue the prosecutor’s refusal to grant Sandoval or Croffoot immunity for murder charges was also misconduct, as it was allegedly unconscionable and interfered with defendant’s right to present a defense.

As we have observed, the defendant has no power to force the prosecution to grant immunity to defense witnesses. (In re Williams, supra, 7 Cal.4th at p. 609.) In any event, defendant did not request such immunity below, but only requested that the prosecutor offer immunity for any drug charges arising from the witnesses’ testimony. The issue is not preserved for review. (People v. Cudjo, supra, 6 Cal.4th 585, 619 [barring issue and noting lack of authority requiring prosecutor to offer immunity to defense witnesses].) No claim of ineffective assistance of counsel appears in this connection. 3.

Failure to grant judicial immunity. Defendant argues the trial court should have extended judicial immunity to Croffoot and Sandoval for any potential drug offenses in order to vindicate defendant’s right to present a defense. He argues the issue was preserved below because defendant requested that the prosecutor immunize Sandoval and Croffoot for any liability for drug offenses in order to secure their testimony. Here, defendant did not request judicial immunity in the trial court.

He failed to direct the court’s attention to any authority in support of such immunity, and he did not attempt to meet the standards expressed in the one federal case recognizing such judicial power. (Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964, 972 (Smith).) We conclude he waived the claim. (People v.

Cudjo, supra, 6 Cal.4th at p. 619 [failure to request immunity from either prosecutor or court waives issue on appeal].) Further, even if the issue were preserved for appeal, we have pointed out that “the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has ‘inherent power’ to confer immunity on a witness called by the defense.” (In re Williams, supra, 1 Cal.4th at p. 610.) The one jurisdiction that recognizes such a power, we have observed, also recognizes that “ ‘the opportunities for judicial use of this immunity power must be clearly limited; ... the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity ....[<][] [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendant’s case.

Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the government’s witnesses.’” (People v.

Hunter (1989) 49 Cal.3d 957, 974 [264 Cal.Rptr. 367, 782 P.2d 608], quoting Smith, supra, 615 F.2d at p. 972.) In several recent cases in which this claim has been raised, we have found the defendant failed to meet the stringent offer of proof requirements of the Smith case, even assuming arguendo the doubtful proposition that the trial court has inherent authority to grant immunity. (See, e.g., In re Williams, supra, 7 Cal.4th at p. 610; People v. Cudjo, supra, 6 Cal.4th at p. 619; People v.

Hunter, supra, 49 Cal.3d at p. 974.) Again, we conclude defendant did not meet the stringent standards of Smith, supra, 615 F.2d 964. Although he asserted that the witnesses would provide crucial exculpatory evidence and made an offer of proof regarding their testimony, it seems evident that immunity for drug offenses would not have sufficed to procure the testimony of Sandoval and Croffoot, who faced a danger their testimony might lead to charges of accomplice liability for the murders of which defendant stood accused.

As the prosecutor declared in arguing that a grant of immunity for drug offenses would not procure the witnesses’ testimony: “It’s not the theory of our case they were involved but I cannot exclude that. I might grant one of these people immunity [for murder] or both and they might say, T did it, thanks for the immunity, Mr. Watson, I appreciate it, I wanted to get off these charges and you’ve done it for me,’ so that’s never going to happen.

The final judgment would not be mine, but even with the people that run my office I can’t believe them making a decision that stupid. . . .” Further, defendant cannot meet another element of the Smith standard, that is, “there must be no strong governmental interests which countervail against a grant of immunity.” (Smith, supra, 615 F.2d at p. 972, fn. omitted.) Obviously, as the prosecutor stated, it was contrary to the People’s interest to grant immunity to one potentially involved in a double murder.

Defendant failed below, and fails now, to show that immunity for any drug offenses would have been effective in procuring the testimony of the witnesses, or that any broader grant of immunity would not have countervailed a strong governmental interest in the prosecution of serious crimes such as murder. Accordingly, assuming arguendo that the issue was preserved and that there is any judicial authority to grant immunity, we reject the claim. 4. Exclusion of defense investigator’s testimony.

Defense counsel asked to call Lupori, the defense investigator, to testify as to what Sandoval and Croffoot told Lupori about their activities with defendant on the day of the crimes, claiming the constitutional guarantee of due process required the application of an exception to the hearsay rule. Defendant’s offer of proof was that the investigator would testify that Croffoot and Sandoval stated they were continuously with defendant on the day of the crimes, ingesting drugs.

The court sustained the prosecutor’s hearsay objection to Lupori’s testimony, also rejecting defendant’s claim that the evidence was admissible despite the hearsay rule as a matter of due process. After trial, defendant moved for a new trial in part on the ground that Lupori’s testimony was admissible because Croffoot and Sandoval’s statements to Lupori were admissible as statements against penal interest under Evidence Code

section 1230. On appeal, defendant argues Lupori’s testimony was admissible because Croffoot and Sandoval’s statements were admissible under Evidence Code

section 1230. He also argues the testimony should have been admitted as a matter of due process, citing Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297, 93 S.Ct. 1038]. He claims that trial counsel’s argument that the testimony was admissible as a matter of due process preserved the claim the testimony was admissible under the hearsay exception for statements against penal interest. (Evid. Code § 1230.) Alternatively, he argues counsel’s failure to offer the proper hearsay exception violated his right to the effective assistance of counsel. Evidence Code

section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant’s penal interest. The proponent of such evidence must show “that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v.

Cudjo, supra, 6 Cal.4th 585, 607.) A trial court determining whether the proffered evidence is sufficiently reliable “ ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ ” (Ibid.) We conclude the claim of error under Evidence Code

section 1230 was waived. Defense counsel’s failure to proffer the evidence under that

section deprived the trial court of the opportunity to perform this determination. The claim that the evidence must be admitted as a matter of due process is distinct, and did not serve to preserve the issue. (Cf. People v. Fauber (1992) 2 Cal.4th 792, 854 [9 Cal.Rptr.2d 24, 831 P.2d 249] [counsel’s offer of evidence for impeachment did not preserve claim evidence was admissible to show state of mind].) Counsel’s argument on the motion for new trial that the court had erred under Evidence Code

section 1230 in excluding the evidence came too late; in any event, we see no abuse of discretion in the trial court’s refusal to grant a new trial on this ground. The court could reasonably conclude that any error in excluding the evidence was not prejudicial, as we shall explain below in connection with the claim of ineffective assistance of counsel. (See People v.

Clair (1992) 2 Cal.4th 629, 667-668 [7 Cal.Rptr.2d 564, 828 P.2d 705] [trial court ruling on motion for new trial subject to review for abuse of discretion; court may grant motion when prejudicial error in admission of evidence has occurred]; see also 6 Witkin & Epstein, Cal.

Criminal Law (2d ed. 1989) Judgment and Attack in Trial Court, § 3055, pp. 3779-3780.) With respect to the claim of ineffective assistance of counsel, we cannot say on the appellate record that defendant would or should have prevailed had he offered the testimony as a statement against penal interest, as nothing on the record indicates the trustworthiness or reliability of the witnesses’ statements to Lupori. Second, assuming the evidence was admissible as a statement against penal interest, defendant fails to demonstrate the loss of that evidence was prejudicial at the guilt trial.

Defendant’s offer of proof merely stated the two witnesses would testify they had been with defendant for much of the day of the crimes, using illicit drugs. Another defense witness, however, namely defendant’s employer, testified th

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