THE PEOPLE, Plaintiff and Respondent, v. NOEL JACKSON, Defendant and Appellant, 13 Cal. 4th 1164

Opinion MOSK, J. Defendant Noel Jackson was found guilty of the murder of Sonja Niles, as well as guilty of conspiracy to commit murder. The jury found true enhancements of his sentence for the possession and use of a firearm. (Pen. Code, §§ 12022, subd. (a); 12022.5.) It also found true one special circumstance—that “[t]he murder was intentional and carried out for financial gain.” (§ 190.2, subd. (a)(1).) At the penalty phase, it fixed defendant’s sentence at death. The trial court sentenced defendant accordingly. This appeal is automatic under

section 1239, subdivision (b). We conclude that the judgment should be affirmed in its entirety. I. Statement of Facts A. Guilt Phase Defendant was tried with codefendant Michael Niles before two separate juries. According to the testimony of Anthony Piper, Niles, an old friend, contacted Piper on December 13, 1984. Niles told Piper that he wanted to have his wife killed and that he would be willing to pay $5,000 to the person who would accomplish that task.

Niles said he wanted her murdered because she had “messed with him when he was playing basketball” (Niles had been a college and, briefly, professional basketball player) and that she had “sent his brother to prison.” Piper asked Niles where he would get $5,000 and Niles replied that his wife had an insurance policy for $100,000. He would pay the murderer from the proceeds of the policy after it was cashed in. Piper stated that he was not interested. Niles offered to pay Piper $500 if he knew someone who would undertake the murder.

Piper said he did not know any “hit men.” Eventually Piper and Niles rode around Piper’s neighborhood in Los Angeles and encountered defendant on the street together with a man named Ernie Sanders. Piper introduced Niles to defendant and told defendant that Niles wanted to discuss the killing of his wife. After talking with defendant, Niles drove away in search of a gun. He returned an hour later, stating that he was unable to locate a gun and asking defendant and Piper if they knew where he could get one. Piper observed Niles and defendant conferring and saw them eventually drive off in Niles’s car.

Later that night, Norma Clark, a resident of Corona in Riverside County, was sitting outside of her house in her car, attempting to prevent the theft of her Christmas lights. She lived down the street from Niles and his wife, Sonja Niles. The street lights were on. As Clark sat in her car in the driveway, she saw a red car come down the street and park across from her house. The car lights were off. Clark had seen the car before. She noticed one person in the driver’s seat but no one else. Two or three minutes later, Clark heard a noise up the street that sounded like a gunshot or a light bulb popping.

She looked toward the direction of the noise and saw running down the street a man whom she estimated to be about six feet three or four inches tall, and who wore light-colored pants. He ran directly to the passenger side of the waiting car and climbed in. The car departed with its lights still off. Shortly thereafter, a Corona police officer discovered Sonja Niles, dressed in a correctional officer’s uniform, lying dead near where Clark had witnessed the above described events.

She had been killed by a shotgun, the muzzle of which had been pressed against the back of her head, blasting a four- to five-inch hole through her forehead. The force thrust blood, hair and brain matter onto a fence 32 feet away. At 10:50 p.m., the Corona Police Department received a telephone call from Niles. He said he had picked up his wife from work at 9:15 p.m. and had gone to Los Angeles to see his brother. He said he had been calling her from Los Angeles, but had been unable to reach her.

The dispatcher was instructed by Corona Police Department Detective Dale Stewart, who was investigating Sonja Niles’s murder, to tell Niles to report for questioning, either at his home or at the police department. Niles drove up to his home in a red Toyota two-door automobile. Norma Clark identified that car as the one she had seen leave the scene after she had heard the gunshot.

The police asked Clark to observe Niles, and she stated that he looked to be the man whom she saw running down the street because he had long legs and was tall, but that he was wearing dark pants, unlike the light-colored pants she had observed on the man she had seen running. Detective Stewart arrested Niles because of the suspicious nature of his phone call, his apparently deceptive behavior, and Clark’s statement. He was taken to the Corona Police Department. Among his effects was a card with the name and phone number of a “No-No,” who he claimed during interrogation had murdered Sonja Niles.

The detectives used a reverse telephone directory to locate the address corresponding to this telephone number. Two days later, several detectives, including Detective Stewart, went to that address, which was defendant’s residence, and were met at the door by defendant’s sister, Vicky Barnes. Stewart asked her if “No No” lived there, and she gave defendant’s name—“Noel”—and told them he was not home. She attempted to contact defendant by telephoning him at his girlfriend’s house and was told that he had stepped out briefly. Stewart asked Barnes if defendant owned a pair of tan-colored pants.

She opened the door and began to look through a laundry bag. She removed a pair of khaki pants which were rolled up in a ball. As the pants were unrolled, they revealed large stains of fresh blood and hair in the area between the ankle and the knee on both pant legs, which appeared to greatly surprise Barnes. After discovering the pants, Barnes received a telephone call from defendant. Stewart spoke to defendant and requested him to return home, although Stewart assured him that he was not a suspect in the murder. When defendant arrived home, Stewart arrested him and advised him of his rights, which he waived.

He gave permission to search the bedroom. While the search was being conducted, Stewart questioned defendant. He said he had met Niles on December 13th but denied that he had ever gone to Corona. He said he had been with friends in Los Angeles on the night of the 13th and returned home at 10 p.m. Stewart then showed defendant the khaki pants and asked how he had gotten blood and other matter on them.

Defendant responded: “You guys are serious, aren’t you?” He then told Stewart a different story: he had met Niles; Niles had told him that he wanted to kill his wife; they had obtained a gun from Ernie Sanders; he and Niles had traveled to Corona together; he had waited at Niles’s residence while Niles went to pick up his wife from work at the Department of Corrections; when Niles returned home with his wife, he saw that she was a correctional officer in uniform and informed Niles that he did not want to be involved in the murder; Niles and Sonja Niles argued; he observed her running out of the house with Niles following, and he followed them; Sonja Niles tripped at the curb and fell down on the lawn; Niles then fired the shot that killed her; the blood got on his (defendant’

s) pants because he was standing by Sonja Niles’s head when she fell and was shot. Finally, he and Niles ran together down the street and jumped into the waiting vehicle. While the search of the apartment was continuing, Stewart asked defendant if the gun that was used for the murder was in his room. Defendant said no. The search soon uncovered under defendant’s bed a pump-action shotgun, white tennis shoes, a box of shotgun shells, a towel with powder stains and a left-hand glove. The shoes were stained with blood and brain matter.

Defendant was taken to the Corona Police Department, where he made another statement substantially similar to his second statement, except he stated that Niles had told him that his wife was a prison guard before defendant had set eyes on her, and he claimed he had told Niles immediately that he did not want to be involved in the murder. He also stated that Niles had shot Sonja Niles while she was on the ground. He said that Niles drove him back to Los Angeles and that he, Niles, had blood all over him. Defendant took the gun when he was dropped off. Dr.

DeWitt Hunter, who performed the autopsy on Sonja Niles, testified that death was caused by a massive wound to the head consistent with a shotgun blast. The shot traveled from back to front forcing the brain entirely from its cavity. Laceration of the scalp at the back of the head indicated a contact wound, that is, the barrel of the gun was pressed against the victim’s head when the shot was fired. Death was instantaneous. Dr.

Hunter opined that the presence of blood and other tissue on a six-foot high fence, thirty-two feet from the murder victim’s body, was inconsistent with the victim’s being prone at the time of the shot, and that she must have been standing erect or nearly erect. He also testified that he examined the pair of pants and the shoes presented by the prosecution and found them to have blood and brain matter on them.

He testified as well that Sonja Niles had a bruise on her upper left arm that appeared to have been inflicted within a few minutes to one hour before death by some hard, straight instrument about one-quarter inch in width. State Justice Department criminalist John Abercrombie testified that he examined the pants and shoes recovered in defendant’s apartment and concluded that the blood on them could have come from the victim, but not from Niles or defendant.

He opined that the person wearing the pants at the time of shooting would have had to have been standing relatively close to the victim but not necessarily directly behind her for the pants to be as stained as they were. State Department of Justice criminalist Paul Sham testified that shotgun pellets removed from the victim appeared to be of similar size to pellets contained in a sample of the ammunition found in the search of defendant’s apartment. A piece of shotgun wad found at the scene of the shooting was similar to one of the wads contained in the sample shell.

He also testified that in August of 1985 he inspected the shotgun found in defendant’s apartment and determined it to be visibly undamaged and capable of firing. Corona Police Department evidence technician Sidney Bartholomew testified that he examined the gun found in defendant’s apartment, and found what appeared to be dried blood on the muzzle.

In support of the financial-gain special-circumstance allegation, the prosecution presented evidence that on the day of her death Sonja Niles was covered by a $2,500 death benefit by virtue of her membership in the California Correctional Peace Officers’ Association (CCPOA), payable to her son; a $50,000 accidental death and dismemberment insurance policy, purchased through CCPOA and payable to her son and Niles; a $40,000 supplemental term life insurance policy, also through CCPOA, payable to her son and Niles; a $1,431 death benefit provided by the California Public Employees’ Retirement System (PERS), payable to Niles; a group term life insurance policy through PERS worth $16,453, payable to Niles; a PERSadministered survivor benefit of $350 per month, payable to her son; and an additional $350 payable to Niles should he reach the age of 62.

No actual policies were produced, but there was evidence that the son had received and was receiving payments due him under the purported plans of which he was a beneficiary. The defense theory of the case was that Niles, not defendant, was the murderer, and that defendant had withdrawn from the conspiracy before the murder had been committed. The defense called Corona Police Officer Raymond Cota, who testified that a conversation with Niles’s four-year-old son on the night of the murder corroborated that Niles and Sonja Niles had been fighting.

He testified that the boy had stated he had heard his mother and father screaming at each other and saw them “boxing.” The defense also called Officer Anderson, who had interviewed Norma Clark on the night of the murder. Clark had told him that the person she saw running down the street was six feet, four inches or six feet, five inches tall and that he resembled Niles, who was approximately that height. The parties stipulated that defendant himself was approximately five feet eleven and one-fourth inches tall in his shoes. Defendant did not testify. B.

The Penalty Phase Evidence of defendant’s prior criminal activity was introduced by the prosecution. Correctional Officer Ray Vidales testified that while on duty at Riverside County jail in August of 1987 he was overpowered by the inmates present, defendant among them, in their successful effort to escape. Defendant was awaiting trial in the present case. He handcuffed Vidales to a metal volleyball standard, tied a towel around his mouth, and removed his wallet from his back pocket, taking $6 in cash. He also took Vidales’s handcuff key and two jail keys.

Shelley P. testified that in October of 1987, when she was a 19-year-old sophomore at Oregon State College in Ashland, Oregon, and was out jogging in the early morning, she was attacked, assaulted, and raped by defendant. She testified to the emotional impact that the incident has continued to have on her life. Defendant was later apprehended for the rape and held in an Oregon jail. He pleaded guilty to a charge of rape and was convicted.

The prosecution also introduced evidence that in January of 1988 defendant and another inmate escaped from the Jackson County, Oregon, jail through a hole battered in the window of the cell. Defendant was apprehended later that day, leaving town in a taxi, and pleaded guilty to the charge of escape. The prosecution also introduced documentary evidence of a 1984 conviction in Los Angeles County for what it characterized as felony grand theft, and which was in fact a conviction for the taking of a vehicle, a felony (Veh. Code, § 10851). Defendant called several family members to testify regarding his character.

Defendant’s sister, Brenda Jackson, testified that as children they lived in the small town of Brownwood, Texas, part of an impoverished family of 11 children raised by a single mother. In Texas defendant had worked in agricultural and other jobs to contribute to the financial support of the family. He had speech problems and attended special education classes. Other children ridiculed him because of his stutter. When Brenda was 14, she left her mother’s house with her 8-month-old baby and moved in with defendant, who was living with his girlfriend and her mother.

She stated that she considered defendant to be her best brother, and that he had been loving to her. She testified that all but one of her five brothers had been in trouble with the law. She stated she knew about defendant’s crimes but that he had never admitted to her that he committed any of them. Gomelia Bowers, married to defendant’s aunt, testified that defendant was a nice “regular kid” who helped with the chores in the house and was very quiet and respectful. Claudette Vemer testified she had known defendant for 16 years, was a friend of the family, and that he was very well mannered as a child.

Defendant’s mother, Bonnie Hill, testified that both she and defendant had received beatings at the hands of defendant’s father. The father had left home when defendant was three years old. Defendant was a slow learner with speech problems, and was put into a special school. She said that he made financial contributions to the household when he was working, and that he was the father of two girls and a boy. She stated that defendant was not a bad person and asked the jury to spare his life. Defendant did not testify. II. Jury Selection Issues A.

Discovery of Jury Lists and Venire Defendant contends that the trial court erroneously denied him discovery of certain information regarding jury lists and procedures. Owing to this denial, defendant maintains, he was denied a fair opportunity to assert that his jury panel was not drawn from “ ‘a source fairly representative of the community.’ ” (Duren v. Missouri (1979) 439 U.S. 357, 363 [58 L.Ed.2d 579, 586, 99 S.Ct. 664].) Defendant’s claim must be understood against the proper factual background.

In July of 1987, over one year before the commencement of defendant’s trial, a finding was made in another Riverside County Superior Court case, People v. Neidiffer (No. CR-24472) (hereafter Neidiffer), that the process of selecting jury panels in Riverside County resulted in the underselection of people 18 to 24 years old, poor people, and Hispanics. Several causes for the underrepresentation were identified: inconsistent methods for excusing prospective jurors, duplications and dated information used in forming the jury pool, and lack of follow-up with those persons not responding to the jury summons.

An ad hoc committee consisting of representatives of the municipal and superior courts, the jury commissioner’s office, the district attorney and the public defender was formed to reform the jury selection system.

The committee made several changes in the procedures for assembling jury venires, including implementation of a consistent policy of excusal from jury service, updating of jury pool master lists more frequently from information obtained from the Department of Motor Vehicles and the Registrar of Voters in order to include more people in the 18-24 age group, and revision of the letter issued to people not responding to the jury summons to state that a warrant will issue for their arrest.

It also approved certain interim measures for use while the new procedures were being implemented, including allowing additional peremptory challenges, excusing panels that appeared to be imbalanced, and, if the panel appeared to be unrepresentative, permitting a defendant to contact the jury commissioner to verify the ethnic composition of the venire from which the panel was drawn.

A periodic survey to determine the ethnicity of individuals reporting for jury duty was put into place in order to monitor whether the procedural changes implemented were remedying the lack of representation among the identified groups. In April of 1987, after the motion in Neidiffer had been filed but before it had been decided, codefendant Niles made a discovery motion substantially similar to the one made in that case.

In August of 1987, all the discovery material from the Neidiffer case—jury selection procedures and completed jury room survey forms by prospective jurors administered for nine weeks in March and April of 1987, containing information on the income, age and ethnicity of the venire—was made available to Niles and through him to defendant.

In September of 1987, Niles filed a supplemental motion, later joined by defendant, which requested, among other things, access to the present master list for the jury pool and for the continued administration of a detailed jury survey similar to the one administered in the Neidiffer case. The purpose of these requests was to determine whether the changes recommended by the ad hoc committee were having the intended effect of curing the underrepresentation found in Neidiffer. The trial court denied the supplemental discovery motion in its entirety.

Defendant now claims that the court erred in denying the requested discovery, in particular the discovery of the most recent master list and the administration of new jury surveys to test for race, age, and ethnicity. It is uncontroverted that “[i]n California, the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution (Taylor v. Louisiana (1975) 419 U.S. 522, 530 [42 L.Ed.2d 690, 698, 95 S.Ct. 692]) and by

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section 16 of the California Constitution (People v. Wheeler (1978) 22 Cal.3d 258, 272 [148 Cal.Rptr. 890, 583 P.2d 748]).” (Williams v.

Superior Court (1989) 49 Cal.3d 736, 740 [263 Cal.Rptr. 503, 781 P.2d 537].) “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.” (Duren v.

Missouri, supra, 439 U.S. 357, 364 [58 L.Ed.2d 579, 586-587].) Once a prima facie case has been made, “the burden shifts ‘to the state to come forward with either a more precise statistical showing that no constitutionally significant disparity existed or that there was a compelling justification for the procedure which results in the disparity in the jury pool.’” (People v.

Sanders (1990) 51 Cal.3d 471, 491 [273 Cal.Rptr. 537, 797 P.2d 561].) But “[w]hen, as here, ‘a county’s jury selection criteria are neutral with respect to race, ethnicity, sex, and religion, more is required to shift the burden to the People.

The defendant must identify some aspect of the manner in which those criteria are being applied that is: (1) the probable cause of the disparity, and (2) constitutionally impermissible.’ ” (Id. at pp. 492-493.) Here we consider not whether defendant has made a prima facie case, but the prior question of whether defendant was wrongly denied the discovery of information necessary to make such a case. A defendant who seeks access to this information is obviously not required to justify that request by making a prima facie case of underrepresentation.

Rather, upon a particularized showing supporting a reasonable belief that underrepresentation in the jury pool or the venire exists as the result of practices of systematic exclusion, the court must make a reasonable effort to accommodate the defendant’s relevant requests for information designed to verify the existence of such underrepresentation and document its nature and extent. (Cf. City of Santa Cruz v.

Municipal Court (1989) 49 Cal.3d 74, 93 [260 Cal.Rptr. 520, 776 P.2d 222] [complaints of excessive force by arresting police officers discoverable by defendant upon “reasonable belief.”].) Moreover, in this case, some of the information sought, such as master lists of jury pools, as well as general jury selection policies and practices, are judicial records that are or should be available to the public. (See People v. Rhodes (1989) 212 Cal.App.3d 541, 550 [261 Cal.Rptr. 1]; Pantos v.

City and County of San Francisco (1984) 151 Cal.App.3d 258, 262 [198 Cal.Rptr. 489].) But in the present case defendant was not deprived of the ability to discover pertinent information. As noted, the Riverside County Superior Court, in response to the data uncovered in the Neidiffer case, instituted interim measures to enable defendants to address manifestations of continuing underrepresentation among certain classes.

These interim measures provided defendant with sufficient opportunities to raise the issue of continuing disparity in the jury pool at the time his jury was to be picked—authorizing him to excuse apparently unrepresentative panels and to obtain information about the venires from which his panels were drawn. There is no indication that he availed himself of these opportunities, or that he lacked the means to discover whether the venire from which his jury panel was drawn was representative of the community.

Given these interim procedures and the absence of any showing that they were inadequate for defendant’s discovery purposes, any error the trial court may have made in denying defendant access to jury pool master lists or other public records was not prejudicial. His claim that he was denied the ability to discover information necessary to make a prima facie showing of underrepresentation is therefore without merit. B. Wheeler/Batson Challenges Defendant is a Black man. The prosecutor used three of eighteen peremptory challenges to remove Blacks from the jury. No Blacks served on defendant’s jury.

Defendant now claims that the trial court erred in denying his motion under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson), to dismiss the jury panel. “In Wheeler, we held that peremptory challenges may not be used to remove prospective jurors solely on the basis of presumed group bias.

We defined group bias as a presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citation.] The United States Supreme Court similarly held in [Batson), that the Equal Protection Clause forbids peremptory challenges of potential jurors solely on account of their race when the defendant is a member of that race. Such challenges may not be used ‘to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black.’ ” (People v.

Johnson (1989) 47 Cal.3d 1194, 1215 [255 Cal.Rptr. 569, 767 P.2d 1047].) “Under Wheeler and Batson, if a party believes his opponent is improperly using peremptory challenges for a discriminatory purpose, he must raise a timely challenge and make a prima facie case of such discrimination.

Once a prima facie case has been shown, the burden shifts to the other party to come forward with an explanation that demonstrates a neutral explanation related to the particular case to be tried. [Citations.] The court in Batson noted that the prosecutor may not rebut the defendant’s prima facie case merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections: ‘If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause “would be but a vain and illusory requirement.” ’ [Fn. omitted.] [Citation.] “Both Wheeler and Batson profess confidence in the ability of the trial courts to determine the sufficiency of the prosecutor’s showing.

In Wheeler, we said that we will ‘rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ [Citation.] The court indicated likewise in Batson. [Citation.] The trial court, however, must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily. . . .’ [Citation.]” (People v.

Johnson, supra, 47 Cal.3d at p. 1216.) In the present case, defendant made a Wheeler motion at the end of the jury selection process, based on the exclusion of all three Black venirepersons called into the jury box. The trial court stated that it “would hear from the People on their use of preempts . . . .” In so doing, the trial court made at least an implied finding of a prima facie showing of systematic exclusion, thus shifting the burden to the prosecutor to justify each of the challenges. (See People v.

Fuentes (1991) 54 Cal.3d 707, 717 [286 Cal.Rptr. 792, 818 P.2d 75].) The prosecutor proffered several race-neutral justifications for the exclusion of the Black potential jurors. For Annie Hysmith, the most significant reason was the reluctance she expressed, on her jury questionnaire and during voir dire, to support and impose the death penalty. Verdan Verret, although generally favorable to the prosecution and supportive of the death penalty, had had several bad experiences with the police, and expressed doubts about their credibility. For Mary Alford the prosecutor offered a number of reasons.

He felt, based on her questionnaire, that she would feel “very, very sorry for drug users” and so would feel sympathy for defendant, a drug user; that she scored “not high” on her attitude toward the death penalty; that she said that she could “remember everything,” and would therefore be “hypercritical” of witnesses whose recollections were clouded by the passage of time; that she might give too great a weight to psychiatric testimony; that she had a daughter who had recently been prosecuted as a juvenile by the district attorney’s office for petty theft; and that she “appeared quite nervous.” At the end of the prosecutor’s explanations, the trial court denied the Wheeler motion “on the basis of the representations of the People and the Court’s own observations of the particular jurors.” Defendant now contends that the prosecutor’s reasons for excluding some or all of the Black veniremen were pretextual, and that exclusion was in fact primarily for group bias.

Specifically, he argues that, when the responses of the stricken potential jurors are compared to the answers to the same questions of Whites who served as jurors or as alternates, the prosecutor’s explanations are undermined. For example, defendant claims that Mary Alford’s responses to questions concerning drug users, the psychiatric testimony, and the death penalty, were not appreciably different from those of a number of persons who served on the jury. A number of jurors also had close relatives who had been convicted of criminal offenses, or had themselves been convicted of such offenses.

Defendant contends that this comparative analysis strips away a facade of racial neutrality to expose underlying racial bias in the jury selection. As this court has stated: “If the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscrin inatory justifications offered, its conclusions are entitled to deference on appeal. In such circumstances, an appellate court will not reassess good faith by conducting its own comparative juror analysis.

Such an approach would undermine the trial court’s credibility determinations and would discount ‘ “the variety of [subjective] factors and considerations,” ’ including ‘prospective jurors’ body language or manner of answering questions,’ which legitimately inform a trial lawyer’s decision to exercise peremptory challenges.” (People v. Montiel (1993) 5 Cal.4th 877, 909 [21 Cal.Rptr.2d 705, 855 P.2d 1277].) Here, there is no reason to conclude that the trial court did not make “a sincere and reasoned effort” to evaluate the credibility of the prosecutor’s nondiscriminatory justifications.

Although the trial court’s statement was brief, it apparently independently assessed the prosecutor’s reasons for peremptorily challenging the jurors. (Compare People v. Cummings (1993) 4 Cal.4th 1233, 1282 [18 Cal.Rptr.2d 796, 850 P.2d 1] [no basis in record for concluding that the court failed to scrutinize the prosecutor’s reasons] with People v.

Fuentes, supra, 54 Cal.3d at pp. 720-721 [statements of trial court revealed that it had abdicated its responsibility to make a “ ‘reasoned attempt’ ” to scrutinize the prosecutor’s explanations for each prospective juror in question].) This court has further held that Wheeler does not require the trial court to conduct further inquiry into the prosecutor’s race-neutral explanations if, as here, it is satisfied from its observations that any or all of them are proper. (People v.

Johnson, supra, 47 Cal.3d at p. 1218.) We therefore conclude that the trial court did not abuse its discretion in denying defendant’s Wheeler motion. C.

Denial of Motion as to “Guilt Phase Indudables” Defendant joined a motion by codefendant Niles to prohibit “the prosecution from questioning potential jurors about their attitudes toward the death penalty beyond the minimal inquiry necessary to establish that the venire-person could be fair and impartial in determining guilt or innocence, unless or until it is determined that there will in fact be a penalty phase; and ... a ruling prohibiting the exclusion of potential jurors who could fairly and impartially determine guilt or innocence but who would never consider voting for the death penalty if a penalty phase was reached.” The trial court denied the motion, and defendant now claims that it erred, in violation of his right to a jury drawn from a fair cross-section of the community under the Sixth Amendment to the United States Constitution and

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section 16 of the California Constitution. We disagree. The exclusion of those categorically opposed to the death penalty at the guilt phase of the trial does not offend either the United States Constitution (Lockhart v. McCree (1986) 476 U.S. 162, 176-177 [90 L.Ed.2d 137, 149-150, 106 S.Ct. 1758]) or the California Constitution (People v. Ashmus (1991) 54 Cal.3d 932, 956-957 [2 Cal.Rptr.2d 112, 820 P.2d 214]).

As the United States Supreme Court explained, death penalty opponents, “or for that matter any other group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-cross-section requirement.” (Lockhart, supra, 476 U.S. at pp. 176-177 [90 L.Ed.2d at pp. 149-150]; see also People v.

Fields (1983) 35 Cal.3d 329, 353 [197 Cal.Rptr. 803, 673 P.2d 680].) It is also well settled that this exclusion does not violate defendant’s right to an impartial jury. (Lockhart, supra, 476 U.S. at pp. 183-184 [90 L.Ed.2d at p. 154]; Ashmus, supra, 54 Cal.3d at p. 957.) Thus even if it were true, as defendant argues extensively, that social science evidence now shows conclusively that death-qualified juries are more prone to convict than those not thus qualified, that evidence does not support a constitutional prohibition of such death qualification. (Lockhart v.

McCree, supra, 476 U.S. at p. 173 [90 L.Ed.2d at pp. 147-148].) His claim is therefore without merit. D. Denial of For-cause Challenges Defendant contends that he was compelled to exercise four of his peremptory challenges on jurors who professed an unequivocal preference for imposing a sentence of death, rather than one of life imprisonment without possibility of parole, on one convicted of first degree premeditated murder for purpose of financial gain. Defendant eventually exhausted his peremptory challenges.

He claims that the wrongful denial of these for-cause challenges violated his rights to due process and a fair trial under the United States and California Constitutions. We have reviewed the record of the voir dire of each of the four prospective jurors. They gave conflicting answers regarding their ability to consider both penalty options available to them, but they all agreed, during the prosecutor’s voir dire, that they could fairly consider the option of life imprisonment without possibility of parole.

Each modified his or her initial strong stance in favor of the death penalty in the abstract with the willingness to consider the particular circumstances of the case, and to follow the applicable law, at the penalty phase. “Where equivocal or conflicting responses are elicited, the trial court’s determination of the prospective jurors’ states of mind is binding on an appellate court.” (People v.

Beardslee (1991) 53 Cal.3d 68, 103 [279 Cal.Rptr. 276, 806 P.2d 1311].) “On this record, we cannot say that, as a matter of law, the jurors’ views on capital punishment would have prevented or substantially impaired the performance of their duties as jurors in accordance with their instructions and their oath.” (Ibid.; see Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844].) Therefore, the trial court did not abuse its discretion in denying defendant’s for-cause challenges.

Defendant also contends that one of the prospective jurors professed a racial bias against Black people, and the court wrongly denied his for-cause challenge, requiring a peremptory challenge for his removal. This juror, too, gave conflicting responses. He stated that he had been raised with racial prejudice but that he had “grown out of’ the prejudice. He also expressed his belief, derived from “the media,” that Blacks were more likely to have committed a crime than Whites, but professed his ability to judge each case individually.

Given these equivocal answers, we cannot say that the trial court abused its discretion in denying defendant’s for-cause challenge. (See People v. Pride (1992) 3 Cal.4th 195, 229 [10 Cal.Rptr.2d 636, 833 P.2d 643].) E. Prosecutor’s Use of Peremptory Challenges to Excuse “Death Penalty Skeptics” Defendant claims that the prosecutor used his peremptory challenges to systematically exclude prospective jurors who professed skepticism about the death penalty but were not excludable for cause on that basis.

He further claims that as a result he was denied due process, the right to an impartial jury, and the right to a reliable determination of guilt and penalty under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and their California equivalents. We have rejected substantially similar contentions (People v. Marshall (1990) 50 Cal.3d 907, 927 [269 Cal.Rptr. 269, 790 P.2d 676]), and decline to reconsider them here. III. Guilt Phase Issues A. Suppression of Evidence Pursuant to

Section 1538.5 Defendant claims that his motion to suppress evidence of the pair of blood-soaked khaki pants, 12-gauge shotgun, ammunition, and various other pieces of evidence discovered in his sister’s home was wrongly denied, and that the evidence was illegally obtained in violation of his right against unreasonable search and seizure under the Fourth Amendment to the United States Constitution and

article I,

section 13 of the California Constitution. He further contends that the trial court exceeded its jurisdiction in permitting the prosecution to relitigate the search and seizure issue before trial, in violation of

section 1538.5, subdivision (j). As will appear, his claims are without merit. Defendant moved before trial to suppress the above mentioned evidence pursuant to

section 1538.5. The trial court held a hearing on the matter at which defendant’s sister, Vicky Barnes, and Corona Police Detectives Dale Stewart and Alex Marmolejo testified, providing the court with markedly different accounts of the relevant facts. . According to Detective Stewart, he went to Barnes’s home to find a person named “No-No,” who had been identified by Niles as the murderer of his wife. Stewart was accompanied by Special Agent James Guitón of the California Department of Corrections and three police officers from the City of Los Angeles.

At the time he arrived at the scene, Detective Stewart believed that Niles had lied to him and did not believe that defendant had been involved in the crime. Upon initial questioning, Barnes stated that a “Noel” lived there, referring to defendant, but that he had recently left to visit his girlfriend. Barnes permitted Detectives Stewart and Marmolejo to enter the apartment. Detective Stewart told Barnes and defendant’s mother, who was also present, that he did not suspect defendant of the murder.

Stewart asked whether defendant owned any light-colored pants—a witness had identified the person running from the murder scene as wearing light-colored pants. Barnes, without replying, went into defendant’s bedroom and retrieved a rolled up pair of khaki pants. As recounted above, she unrolled them in the police officer’s presence, revealing that the pant legs, from the knee down, were covered with blood and other organic matter. Barnes was surprised and visibly shaken by this revelation and began crying. Shortly after this occurred, defendant phoned.

Barnes told him that the police were there and wanted to speak to him. She did not attempt to warn him off. She put him on the phone with Stewart, who told him he wanted to question him in person. Thereafter, Stewart attempted to use the telephone to get a search warrant. Barnes grabbed the telephone out of Stewart’s hands, unplugged it, and ordered the police out of her house. Stewart replied that he was obtaining a search warrant and intended to search the house. An altercation ensued in which Barnes was eventually handcuffed and taken outside.

Stewart also testified that when defendant arrived at the house and was arrested, he waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), and denied having been in Corona. Once defendant was confronted by the bloody pants, however, he changed his story, admitting that he had accompanied Niles to Corona, that they had obtained a shotgun, that he had been at the scene when Sonja Niles was murdered, and that the blood had gotten on his pants when the victim fell.

He denied having direct involvement in the murder, however, stating that he had backed out of the initial plan when he learned that Sonja Niles was a correctional officer. He consented to a search of his bedroom. The search uncovered, among other things, a 12-gauge shotgun, ammunition, and a pair of tennis shoes with blood and other matter on them. Barnes, in contrast, testified that she did not invite the police inside her home. One of the officers asked her for permission to check whether defendant was present. She consented and accompanied the officer.

Upon their return, she found the other officers had entered the apartment and were beginning to search it. When Barnes questioned the police activity, Stewart told her to “sit down and shut up.” According to Barnes, Stewart stated that he would get a search warrant and “tear the son of a bitch apart,” by which she understood him to mean he would use the search warrant to tear her home apart. At some point, defendant called and Barnes handed the phone to Stewart. Soon thereafter, concerned that the police would do damage to her apartment, she unplugged the phone.

In response Stewart threw Barnes to the floor, handcuffed her, and removed her from the apartment. Most importantly, Barnes insisted that, although she was questioned about defendant’s light-colored pants, she had stated that she did not know where he kept his laundry and at no time checked his laundry bag, much less showed the pants to the police. Detective Marmolejo testified in rebuttal, confirming Stewart’s version of events. The trial court denied the suppression motion, but in doing so, made factual findings that were potentially adverse to the People.

The court found Barnes’s testimony that she had not found or shown the bloodstained pants to be credible, and the court chose not to believe Stewart’s and Marmolejo’s version of events. The trial court found, rather, that the bloody pants had been discovered during the search pursuant to defendant’s consent once defendant was arrested. The trial court nonetheless found the consent to be have been lawfully obtained, and therefore denied defendant’s motion to suppress. Eleven days later, the prosecution filed a motion to “augment and reconsider” the motion to suppress, pursuant to Code of Civil Procedure

section 128, subdivision (a)(8). The grounds for motion were, in essence, that Barnes’s testimony had taken the prosecution by surprise and that the trial court’s factual findings could lead to an eventual dismissal of the case against defendant. The motion was accompanied by a transcript of an interview with Special Agent Guitón, and a police report prepared the day of defendant’s arrest by an officer of the Los Angeles Police Department, both of which contradicted Barnes’s account of events and corroborated Stewart’s and Marmolejo’s.

At a second hearing on his suppression motion, the court heard the testimony of Special Agent Guitón, and two of the Los Angeles police officers who had been present on the scene, who confirmed the account of the Corona police officers. The trial court granted the motion over defendant’s objection on the grounds that the prosecutor had submitted new evidence, as well as that the interests of justice would be served. It subsequently modified its factual findings, concluding that Detective Stewart’s version of events was the correct one.

Defendant’s contention that his suppression motion was wrongly denied is predicated on three claims. First, he contends that the trial court exceeded its jurisdiction in reopening the suppression hearing under

section 1538.5, subdivision (j), and that we are bound by the trial court’s factual findings after the first hearing when determining the lawfulness of the search and seizure. Second, he contends, those findings led to the conclusion defendant was wrongfully arrested by the police. Third, he claims that the trial court wrongly concluded, after the first suppression hearing, that he had lawfully consented to the search of his room, because his wrongful arrest tainted the supposed subsequent consent. We need not address his second and third claims because we find his first claim to be without merit. To understand why this is so, we must briefly review the statutory scheme set forth in

section 1538.5. As we have stated: “Section 1538.5 provides a comprehensive and exclusive procedure for the final determination of search and seizure issues prior to trial. Its enactment was chiefly aimed at redressing defects identified in the previously existing procedures: (

i) the unnecessary expenditure of time and effort in allowing repeated challenges to the legality of a search or seizure during the course of a criminal proceeding; (ii) the waste of jury time in permitting search and seizure questions to be raised during trial, since the determination of these issues takes place outside the presence of the jury; and (iii) the lack of adequate opportunity for the prosecution to obtain appellate review of an adverse decision on a search and seizure question before trial commences and jeopardy attaches. [Citations.] [][] In accordance with these objectives,

section 1538.5 requires that a defendant’s motion for the return of property or suppression of evidence obtained as a result of a search or seizure be made at an early stage. In the case of a felony offense initiated by complaint, the motion may be made at the preliminary hearing before the magistrate. [Citation.] Additionally, if the defendant is held to answer at the preliminary hearing or the felony is charged by indictment, the defendant is entitled to renew or make the motion in superior court at a special de novo hearing.” (People v.

Brooks (1980) 26 Cal.3d 471, 475-476 [162 Cal.Rptr. 177, 605 P.2d 1306].) A defendant may also make a suppression motion for the first time at trial if “opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion.” (§ 1538.5, subd. (h).) The People’s ability to contest the suppression of evidence is likewise governed by

section 1538.5. Subdivision (

j) provides, in pertinent part, that: “If defendant’s motion [for return of property or suppression of evidence] is granted at a special hearing in the superior court, the people, if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show good cause at the trial why the evidence was not presented at the special hearing and why the prior ruling at the special hearing should not be binding, or the people may seek appellate review as provided in subdivision (o) . . . (Italics added.) Defendant contends that the trial court acted contrary to statute by permitting relitigation of the suppression motion before trial and without good cause.

But neither subdivision (j), nor any other part of

section 1538.5, applies literally to the situation before us, in which the People seek to reopen a suppression motion that has been denied. Nor can such an application be implied, in light of the express terms of the statute. Defendant nonetheless claims that this prohibition can be implied from

section 1538.5, subdivision (m). That subdivision states that

section 1538.5, and several other sections not relevant here, “shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion . . . is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her.” The exclusivity language in subdivision (

m) must be read, however, in the context of the entire statute of which it is a part. (See People v. Morris (1988) 46 Cal.3d 1, 16 [249 Cal.Rptr. 119, 756 P.2d 843].)

Section 1538.5 governs the means by which a defendant can move to suppress evidence resulting from an illegal search and seizure, and, in subdivisions (h), (i), and (j), the means by which both the defendant and the People can challenge an adverse ruling on a suppression motion. Thus the term “exclusive remedies” must be understood, in light of the subject matter encompassed by the statute, to signify the available avenues for suppressing evidence and for relief from unfavorable rulings on the suppression of evidence, not to a modification of a favorable ruling, which the statute nowhere addresses. There is no indication that the Legislature intended, in

section 1538.5, to preclude such modification. Defendant quotes our language in Madril v. Superior Court (1975) 15 Cal.3d 73 [123 Cal.Rptr. 465, 539 P.2d 33], that the determination of a

section 1538.5 motion at a special hearing in superior court “whether in the defendant’s or in the People’s favor—deprives that court of jurisdiction to reconsider the matter unless the People, pursuant to subdivision (j), seek to reopen the matter at trial upon a showing of good cause.” (15 Cal.3d at pp. 77-78, italics in original.) In Madril the People moved to reopen, prior to trial, a suppression motion that had been granted, claiming that “ ‘through haste and inadvertence important areas of inquiry were not fully explored.’ ” {Id. at p. 74.) In holding that the trial court lacked jurisdiction for such pretrial reconsideration, we disapproved of dicta in earlier cases asserting that the trial court has the inherent power to reconsider suppression motions prior to the expiration of the 30-day period for seeking writ review under

section 1538.5, subdivisions (

o) and (i). (15 Cal.3d at p. 77.) We were clearly concerned in Madril with a situation explicitly covered by

section 1538.5, that is, the prosecution’s motion to reconsider a granted suppression motion. Our statement that the trial court had no jurisdiction for such reconsideration before trial was simply another means of conveying that the trial court had no inherent power to do that which the statute expressly forbade—to reconsider a granted suppression motion other than as prescribed in subdivision (j). We did not consider in Madril the unusual situation presented in this case in which the prosecution seeks reconsideration of unfavorable factual findings in a denied suppression motion.

Nothing in the logic of Madril compels us to conclude that the trial court exceeded its jurisdiction in this case. Because the People’s motion to “augment and reconsider” the suppression motion was not governed by

section 1538.5, we agree with the People that the trial court’s ability to grant relief is instead controlled by Code of Civil Procedure

section 128, subdivision (a)(8), which states that every court will have the power to “amend and control its process and orders so as to make them conform to law and justice." We have recognized the power of trial courts to use Code of Civil Procedure

section 128, subdivision (a)(8) to correct erroneous in limine rulings in criminal cases. (People v. Keenan (1988) 46 Cal.3d 478, 513 [250 Cal.Rptr. 550, 758 P.2d 1081]; see also People v. McGee (1991) 232 Cal.App.3d 620, 627-628 [283 Cal.Rptr. 528].) Indeed, prior to the adoption of Penal Code

section 1538.5, the predecessor to Code of Civil Procedure

section 128, subdivision (a)(8), was held to be the source of a trial court’s inherent authority to modify a suppression order. (People v. Beasley (1967) 250 Cal.App.2d 71, 77 [58 Cal.Rptr. 485].) Accordingly, we conclude that Code of Civil Procedure

section 128, subdivision (a)(8), gives the court the discretion to modify the factual findings of a denied suppression order, as requested by the prosecution or sua sponte, in the interests of justice. There is no showing in this case that the trial court abused its discretion to make such a modification. Nor can we say, on the record before us, that the trial court’s finding that Barnes consented to show the police the bloody pants was not based on substantial evidence.

Given that conclusion, it follows that defendant was arrested with probable cause, and his subsequent consent to search after the voluntary waiver of his Miranda rights was lawfully obtained. We therefore conclude that the trial court did not err in denying defendant’s motion to suppress. B. Validity of Miranda Waiver As recounted above, defendant was advised of his rights under Miranda v. Arizona, supra, 384 U.S. 436. He waived those rights and confessed to having been with Niles when the latter murdered his wife, although he disavowed any participation in the murder.

He later gave a second statement, taped at the Corona Police Department, essentially reiterating the first statement in somewhat greater detail. He moved before trial to exclude both of his statements under Evidence Code

section 402. The trial court denied the motion. He now contends that the trial court erred in allowing these statements to be admitted into evidence. Specifically, defendant contends on appeal that Detective Stewart made material misrepresentations to him that deceived him into making his incriminating statements. As explained above, Stewart was present at the apartment defendant shared with his sister when defendant telephoned.

Stewart told him that he was from the City of Corona, that he was investigating a homicide, that someone had said that he was present when the homicide had occurred, but that he, Stewart, did not believe the person supplying that information. Stewart further told defendant he wanted him to come back to the apartment to make a statement while Stewart was in Los Angeles. He agreed to do so. What Stewart did not tell him was that he had already discovered the bloodstained pants and that he had become a suspect in Sonja Niles’s murder. He eventually arrived, was arrested and handcuffed and read his Miranda rights.

He denied ever having been to Corona, but after being shown the bloody pants, he said: “You guys are serious, aren’t you?” Stewart responded that he was “real serious,” at which point defendant made his statement admitting his presence at, though not his direct participation in, Sonja Niles’s murder. “‘[T]he use of deception or communication of false information to a suspect, [although it] does not alone render a resulting statement involuntary [citation], . . . is a factor which weighs against a finding of voluntariness. [Citations.]’ ” (People v.

Thompson (1990) 50 Cal.3d 134, 167 [266 Cal.Rptr. 309, 785 P.2d 857].) Defendant contends that because Stewart had misrepresented to him over the telephone that he was not a suspect in the murder, he did not realize that he was a suspect at the time he gave his statement, and therefore did not knowingly waive his right to remain silent. Defendant further contends that the police deception in this case resembles that in U.S. v.

Rogers (5th Cir. 1990) 906 F.2d 189, in which the court found the defendant’s waiver of his Miranda rights to be invalid when the police initially led him to believe that he was not a criminal suspect and did not inform him otherwise until after he made his incriminating statement. {Id. at pp. 191-192.) But the voluntariness of a suspect’s waiver is not called into question when, as in this case, the police use a misrepresentation to lure a suspect into custody, yet reveal the misrepresentation before the suspect makes a statement.

In this case, the misrepresentation employed by Stewart —that defendant was not a suspect in the case—had already been exposed as false. At the time defendant made his statement, he had been arrested, handcuffed, asked about the murder, and had been shown the bloodstained pants. He therefore must be presumed to have been acutely aware that, whatever Stewart had told him over the telephone, he was a súspect. We therefore conclude that defendant’s contention that he did not knowingly waive his right against self-incrimination is without merit. C.

Use of Two Juries Before trial, both Niles and defendant moved to sever the trial. The prosecution opposed the motion, proposing instead the use of two juries, acknowledging the possibility that there was some evidence, particularly the extrajudicial statements of Niles incriminating defendant, that might not be admissible at defendant’s separate trial. The trial court denied the motion for severance and granted the prosecution’s request.

Defendant now contends that the trial court abused its discretion in opting for a dual jury rather than for severance, and that such abuse led to the violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and their counterparts under the California Constitution. We find, however, that no such abuse of discretion occurred. Two defendants jointly charged with the same offense must be tried together, except when the trial court in its discretion orders separate trials. (§ 1098; People v.

Massie (1967) 66 Cal.2d 899, 916 [59 Cal.Rptr. 733, 428 P.2d 869].) An abuse of discretion occurs when the failure to sever leads to the admission at one defendant’s trial of incriminating extrajudicial statements by a joint defendant that would otherwise be inadmissible in a separate trial. (People v. Aranda (1965) 63 Cal.2d 518, 529-530 [47 Cal.Rptr. 353, 407 P.2d 265]; Bruton v. United States (1969) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620].) In People v.

Harris (1989) 47 Cal.3d 1047, 1070-1076 [255 Cal.Rptr. 352, 767 P.2d 619], we held that the problem addressed in Bruton and Aranda may be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence.

We rejected various constitutional and statutory arguments against the dual jury system and concluded that it is “a permissible practice” and “is not a basis for reversal on appeal in the absence of identifiable prejudice resulting from the manner in which it is implemented.” (Id. at p. 1075.) Defendant contends that several instances of such prejudice occurred.

First, he claims that the longer trial led to a greater than usual number of jurors excused for hardship, which in turn “trigger[ed] fair cross-section concerns . . . .” He does not articulate, however, what these concerns might be, or which cognizable groups were systematically excluded. Nor, even if he were to identify such groups, has he carried his burden of proving that the use of a dual jury—a race-, class-, and gender-neutral procedure—is constitutionally impermissible. (See People v.

Sanders, supra, 51 Cal.3d at pp. 492-493.) Second, defendant contends that Niles’s counsel served, in effect, as a second prosecutor, bringing out in cross-examination on a number of occasions testimony detrimental to defendant. Yet he does not identify any evidence elicited by Niles’s counsel that would have been inadmissible at a separate trial. The mere fact that a damaging cross-examination that the prosecution could have undertaken was performed instead by codefendant’s counsel did not compromise any of defendant’s constitutional or statutory rights.

Third, defendant contends that the failure to sever “effectively deprived [him] of the benefit of his codefendant’s testimony.” We have indeed held that “the possibility that at a separate trial a codefendant would give exonerating testimony" weighs in favor of severance. (People v. Massie, supra, 66 Cal.2d at p. 917.) Here, however, there is no basis for supposing that Niles, whose defense was to place the blame on defendant, would have contradicted himself with testimony exonerating defendant at the latter’s trial.

Fourth, defendant contends that the fact that his and Niles’s defenses were antagonistic also weighs in favor of severance. (See People v. Massie, supra, 66 Cal.2d at p. 917.) But as we recently stated: “That defendants have inconsistent defenses and may attempt to shift responsibility to each other does not compel severance of their trials [citation], let alone establish abuse of discretion in impaneling separate juries.” (People v. Cummings, supra, 4 Cal.4th at p. 1287.) Here, as in Cummings, “the defense positions were antagonistic because the identity of the killer was disputed by defendants.

That each was involved in the incident was undisputed, however, and the prosecution had offered evidence sufficient to support verdicts convicting both defendants. . . . [T]his was not a case in which only one defendant could be guilty. The prosecution did not charge both and leave it to the defendants to convince the jury that the other was [the guilty] person.” (Ibid.) In short, the trial court did not abuse its discretion by refusing to sever defendant’s and Niles’s trial, inconsistent defenses notwithstanding. D.

Testimony in Defendant’s Absence Defendant claims that his voluntary absence from the court on December 15,1988, during the taking of evidence, violated sections 977 and 1043. We conclude that he is correct in his assertion that the court committed statutory error by permitting him to absent himself from trial during the taking of evidence. We further conclude that such error was not prejudicial.

On December 15, 1988, during the prosecution’s presentation of its case, defendant appeared in the court room with a black eye, and his counsel requested a continuance so that defendant would not make a negative impression on the jury. The court denied the continuance. Counsel then indicated to the court that defendant preferred to absent himself from the trial for that day. The prosecutor stated that he planned to examine Anthony Piper, a witness who testified to defendant’s initial association with Niles.

The prosecution also planned to examine two criminalists, Sham and Abercrombie, and to continue the examination of Detective Stewart. Defendant’s counsel, in open court, explained to defendant that he had the right to be present, and that these witnesses would be testifying during his absence. He further explained to the court, and clarified for defendant, that, by prior decision, he would not be cross-examining Piper. The prosecutor additionally emphasized that defendant was potentially eligible for the death penalty.

In response to several inquiries from the court and from defense counsel, defendant made clear that he did not wish to be present in court that day. Indeed, he sat with his back to the court and indicated that he might sit in that manner if he were not allowed to leave. He declined the court’s offer to be in chambers and to hear the proceedings, instead opting to be taken back to jail. A defendant has the right, under the Sixth Amendment of the federal Constitution, to be present at trial during the taking of evidence. (United States v.

Gagnon (1985) 470 U.S. 522, 526 [84 L.Ed.2d 486, 490, 105 S.Ct. 1482]; People v. Johnson (1993) 6 Cal.4th 1, 17 [23 Cal.Rptr.2d 593, 859 P.2d 673].) Nonetheless, as we have concluded, “as a matter of both federal and state constitutional law, ... a capital defendant may validly waive presence at critical stages of the trial.” (People v. Price (1991) 1 Cal.4th 324, 405 [3 Cal.Rptr.2d 106, 821 P.2d 610].) In that case, defendant requested to be absent from the trial, an absence that lasted through much of the guilt phase.

We found “no constitutional infirmity in the trial court’s decisions in [that] case to accept defendant’s actions as a voluntary waiver and to proceed with the guilt phase in defendant’s absence.” (Ibid.) We similarly find no constitutional infirmity in the present case with the defendant’s voluntary waiver of his right to be present on a single day of the trial. Statutory error is another matter.

Section 977, subdivision (b)(1), states in pertinent part that “[i]n all cases in which a felony is charged, the accused shall be present” at various times during the process, including “during those portions of the trial when evidence is taken before the trier of fact . . . .” (Italics added.) That subdivision further provides that “[t]he accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . .”

Section 1043 further provides that a felony defendant “shall be personally present at trial,” (id., subd. (a)), but that the trial may continue in a defendant’s absence if (1) defendant persists in disruptive behavior after being warned (id., subd. (b)(1)); (2) defendant is voluntarily absent in “[a]ny prosecution for an offense which is not punishable by death” (id., subd. (b)(2)); and (3) if a defendant has waived his rights in accordance with

section 977 (id., subd. (d), italics added). Thus, when read together, sections 977 and 1043 permit a capital defendant to be absent from the courtroom only on two occasions; (1) when he has been removed by the court for disruptive behavior under

section 1043, subdivision (b)(1), and (2) when he voluntarily waives his rights pursuant to

section 977, subdivision (b)(1). However,

section 977, subdivision (b)(1), the subdivision that authorizes waiver for felony defendants, expressly provides for situations in which the defendant cannot waive his right to be present, including during the taking of evidence before the trier of fact.

Section 1043, subdivision (b)(2), further makes clear that its broad “voluntary” exception to the requirement that felony defendants be present at trial does not apply to capital defendants. Thus the trial court, by permitting a nondisruptive capital defendant to be absent during the taking of evidence, committed error under sections 977 and 1043. The People’s arguments to the contrary are unpersuasive.

First, although we have decided on numerous occasions that voluntary waiver was not constitutional error we have not, the People’s contrary implication notwithstanding, settled the question whether a defendant’s absence during one of the proceedings during which he or she is mandated to be present under

section 977 violates that statute. We expressly left that question open in People v. Edwards (1991) 54 Cal.3d 787, 810 [1 Cal.Rptr.2d 696, 819 P.2d 436], and have not directly addressed the statutory issue since then. Although we rejected the argument that “a defendant who does not want to be present during jury selection can achieve his wish only if he engages in ‘disruptive behavior,’ ” (id. at p. 809), we left undecided whether a capital defendant’s capacity to absent himself at trial applies to “proceedings . . . specifically listed in

section 977, subdivision (b)” (id. at p. 810). We are now persuaded by the plain meaning of the statute that a capital defendant may not voluntarily waive his right to be present during the proceedings listed in

section 977, including those portions of the trial in which evidence is taken, and that he may not be removed from the courtroom unless he has been disruptive or threatens to be disruptive. The Legislature evidently intended that a capital defendant’s right to voluntarily waive his right to be present be severely restricted. Of course, we will generally defer to the trial court in determining when a defendant has been disruptive or when further disruption may be reasonably anticipated. (See People v. Price, supra, 1 Cal.4th at pp. 405-406.) The trial court’s ability to remove a disruptive or potentially disruptive defendant follows not only from

section 1043, subdivision (b)(1), but also from the trial court’s inherent power to establish order in its courtroom. (See Code Civ. Proc., § 1209 [trial court has the power to sanction various acts of contempt of court].) In the present case, however, the trial court did not remove defendant to prevent disruption, nor does the record reveal that defendant was engaging in disruptive behavior. We therefore conclude that the trial court erred, under sections 977 and 1043, in granting defendant’s request to absent himself during the taking of evidence. We turn, then, to the question of prejudice.

As discussed above, the error in this case is of a purely statutory dimension. We will therefore reverse the judgment only if we can conclude “that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) No such reasonable probability appears in the present case.

Defense counsel stated, prior to securing defendant’s waiver, that they had both decided beforehand not to cross-examine Piper, and therefore defendant’s absence during that testimony was not likely to affect the outcome of the trial. Nor was his absence during the forensic testimony of the criminalists, who were also not cross-examined, regarding blood tests and the shotgun used to kill Sonja Niles, likely to alter the trial’s outcome. Detective Stewart, who also testified, was recalled by the prosecution when defendant was present, and was cross-examined at that time.

Finally, the court properly informed the jury that defendant had been voluntarily excused for good cause and that the jury was not to consider his absence in any respect. We therefore conclude that the trial court’s error was not prejudicial. E. Denial of Motion to Admit Results of Polygraph Examination Before trial, defendant submitted to a polygraph examination administered by a sergeant in the Redlands Police Department who was a licensed polygrapher.

The examiner asked defendant whether he had (1) shot Niles’s wife, (2) pulled the trigger on the gun that shot Niles’s wife, and (3) had seen Niles shoot his wife. Defendant’s answer to these questions were “no,” “no,” and “yes” respectively. The examiner concluded that defendant was answering truthfully. Prior to trial, defendant moved to have the results of the examination introduced into evidence. The prosecutor objected on the grounds that such admission would violate Evidence Code

section 351.1, which provides in pertinent part that “the results of a polygraph examination . . . shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results.” The prosecutor declined to stipulate as to the admission of the polygraph evidence. The court permitted defendant to make an offer of proof of the polygrapher’s testimony, and the polygrapher testified as to the results of defendant’s test. Defendant argued that, notwithstanding Evidence Code

section 351.1, the polygraph testimony was relevant and should be admitted. The court denied the motion. Defendant contends on appeal that the trial court erred. He claims that, Evidence Code

section 351.1 notwithstanding, we should consider whether the polygraph examination has gained general acceptance within the relevant scientific community and is therefore admissible under the principles of People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240] and Frye v. United States (D.C. Cir. 1923) 293 F. 1013 [54 App.D.C. 46], recently reaffirmed in People v. Leahy (1994) 8 Cal.4th 587 [34 Cal.Rptr.2d 663, 882 P.2d 321]. He further contends that because Evidence Code

section 351.1 bars his admission of reliable exculpatory evidence, it violates federal due process. (See Green v. Georgia (1979) 442 U.S. 95, 97 [60 L.Ed.2d 738, 741, 99 S.Ct. 2150].) Even if defendant’s argument were true in the abstract, he has failed to make the proper offer of proof under Kelly/Frye that the polygraph is now viewed in the scientific community as a reliable technique. “ . . Having failed to make the proper offer of proof, defendant is in no position to assign error in the trial court’s ruling.’ ” (People v.

Fudge (1994) 7 Cal.4th 1075, 1122 [31 Cal.Rptr.2d 321, 875 P.2d 36].) The sole witness to testify in support of the motion was the police sergeant who administered the test, who was not competent to testify as to the polygraph’s acceptance in the relevant scientific community. Defendant’s claim is therefore without merit. F. Disclosure of Defendant’s Probation Status Defendant contends that his conviction must be reversed because the jury mistakenly received evidence that he was on probation for grand theft auto at the time of his arrest. The pertinent facts are as follows.

Among the exhibits submitted into evidence was a tape of defendant’s interview with the Corona Police made shortly after his arrest. The tape was accompanied by a printed transcript of the interview, which was distributed to the jury when the tape was played. After the tape had been partly played, defense counsel requested the tape be turned off, and informed the court he did not wish the jury to hear the portion of the interview in which defendant admitted to being on probation for “grand theft auto.” In response, the court ordered that the transcripts be collected from the jury.

The prosecutor and Detective Stewart read aloud from the transcript, omitting the portion of the transcript to which defendant had objected. Later, an edited transcript deleting the proscribed portions was prepared and submitted into evidence. The court ordered that the edited version be identified as exhibit 60 and the unedited version be identified as exhibit 53. Apparently through clerical error, the reverse designation was made. During its guilt phase deliberations, the jury requested to see the transcript.

Defendant conjectures that, because of the confusion in the exhibit numbering, the jury was in fact given the unedited transcript, and that it learned, to defendant’s prejudice, of his prior conviction and probationary status. We are unable to discern, on the bare record, which version of the transcript was given to the jury. We must therefore presume, under Evidence Code

section 664, that “the clerk ‘regularly performed’ her official duty and submitted to the jury only the admissible portions of any exhibits which they requested.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1056 [5 Cal.Rptr.2d 230, 824 P.2d 1277].) The fact that the clerk transposed the numbers on the two exhibits does not mean that she did not carry out her duty to distribute only the edited version.

Even if clerk’s error was committed, however, it was not prejudicial. “ ‘When, as in this case, a jury innocently considers evidence it was inadvertently given, there is no misconduct.’ [Citation.] Rather, all that appears is ordinary error. ... [*][].. . [W]ith ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted.” (People v. Clair (1992) 2 Cal.4th 629, 668 [7 Cal.Rptr.2d 564, 828 P.2d 705].) In this case, there was no reasonable probability of a more favorable outcome.

Passing reference to his probationary status and his prior conviction for a nonviolent offense was overshadowed by the considerable evidence against defendant, including Piper’s testimony regarding the conspiracy between defendant and Niles, Clark’s eyewitness testimony, and the bloody pants and gun found in defendant’s bedroom. The clerk’s error, if error there was, therefore was not prejudicial. G.

Admission of Defendant’s Fight With Piper Defendant filed a motion in limine for an order instructing the People’s and Niles’s counsel to refrain from introducing into evidence certain of his prior criminal acts on the grounds that they were more prejudicial than probative, and therefore should be barred under Evidence Code

section 352. The trial court granted the motion and issued an order prohibiting the introduction of evidence as to the following items: defendant’s escape from Riverside County jail, his alleged false imprisonment and robbery of a correctional officer during that escape, his carrying of a concealed weapon in Redding, his acts of rape, kidnap, escape, burglary and criminal mischief in Oregon, and his gang affiliation.

At trial, during Niles’s cross-examination of Anthony Piper, the latter testified, without objection, to a quarrel he had with defendant, in which “[he] pushed me and I pushed him and a couple of people came and broke it up.” Defendant claims on appeal that the trial court’s aforementioned order extended broadly to prohibit any testimony about his previous violent acts. But the trial court’s order did not bar all such testimony, only the criminal acts specified above. Nor can defendant claim, as he also does on appeal, that such testimony should have been barred under Evidence Code

section 352 as more prejudicial than probative, because he failed to object. “In the absence of an erroneous ruling on an objection or request that a nonresponsive answer be stricken and the jury instructed to disregard it, there is no error.” (People v. Harris, supra, 47 Cal.3d at p. 1089.) H. Shackling of Defendant Defendant was shackled on one hand and on his feet during trial. He requested the removal of the hand shackle, which was apparently visible to members of the jury, but his request was denied. He claims prejudicial error from the visible shackling.

Physical restraints cannot be imposed “ ‘in the absence of a rqcord showing of violence or a threat of violence or other nonconforming conduct.’ ” (People v. Hawkins (1995) 10 Cal.4th 920, 944 [42 Cal.Rptr.2d 636, 897 P.2d 574].) The trial court’s decision to shackle will be reviewed for abuse of discretion. (Ibid.) No such abuse is manifest here. Defendant was facing recent charges of escape from Riverside County jail and false imprisonment of a correctional officer in the process, and had pleaded guilty to another recent escape from an Oregon jail.

It was reasonable for the trial court to conclude that defendant presented a security risk that justified his shackling. Defendant argues nonetheless that, even if the shackling was not erroneous, the court failed in its duty to ensure that the shackling was done in the least visible or obtrusive manner by removing the hand shackle. As we stated in People v.

Duran (1976) 16 Cal.3d 282, 291 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1]: “[I]n any case where physical restraints are used those restraints should be as unobtrusive as possible, although as effective as necessary under the circumstances.” We recognized that “shackles or manacles are not easily hidden from the jury’s view and [we] do not wish to imply that they should not be used simply because they are obtrusive.” (Id. at p. 291, fn. 9.) We then noted that “less drastic and less visible restraints should be employed when, in the exercise of his discretion, the judge concludes it is safe to do so.” (Ibid.) It does not appear from the present record, in light of defendant’s escape history and violence against correctional personnel, that the trial court abused its discretion in ordering the hand shackling.

I. Admission of Photographs The prosecution sought to admit 11 photographs of the victim, over defendant’s objection. It subsequently withdrew all but four of the photographs, including an autopsy photograph. The trial court denied admission of the autopsy photograph, but admitted into evidence three postmortem photographs over the objections of Niles’s

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