THE PEOPLE, Plaintiff and Respondent, v. PEDRO ARIAS, Defendant and Appellant, 13 Cal. 4th 92

Opinion BAXTER, J. In charges arising out of an incident on May 23, 1987, a jury convicted defendant Pedro Arias of one count of first degree murder (Pen. Code, §§ 187, 189) and three counts of robbery (§ 211). As to each count, it was found true that defendant personally used a deadly and dangerous weapon, a knife. (§ 12022, subd. (b).) The jury also found, as a special circumstance under the 1978 death penalty law, that the murder occurred in the commission of a robbery. (§ 190.2, subd. (a)(17)(i).) Additional charges arising from a separate incident on June 5, 1987, were tried jointly to the same jury.

The jury convicted defendant of two counts of robbery, one count of kidnapping (§ 207, subd. (a)), one count of kidnapping for purposes of robbery (§ 209), two counts of vaginal penetration with a foreign object (§ 289, subd. (a)), two counts of attempted sodomy (§§ 286, subd. (c), 664), one count of forcible oral copulation (§ 288a, subd. (c)), and two counts of rape (§ 261, former subd. (2), now § 261, subd. (a)(2)).

As to each count, it was found true that defendant personally used a firearm. (§ 12022.5, subd. (a).) In a bifurcated trial, the jury found that defendant had suffered a prior conviction for shooting into an inhabited dwelling (§ 246), and had served a prison term for that crime within five years before committing the current offenses. (§ 667.5, subd. (b).) After a separate trial on the issue of penalty, the jury sentenced defendant to death for the murder. Defendant’s automatic motion for modification of the death verdict (§ 190.4, subd. (e)) was denied.

The trial court also sentenced defendant to a total of 69 years, 4 months, on the noncapital convictions and enhancements. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) We find no prejudicial error affecting either the guilt or penalty trials. We will therefore affirm the judgment in its entirety. I. Facts A. Guilt Trial. 1. Beacon Gas Station Incident—May 23, 1987. In late May 1987, defendant, 24 years old, was living with a group in a house on Lemon Hill Avenue in Sacramento. For transportation, he was using his mother’s 1968 red-primered Plymouth.

The driver’s door of the Plymouth was jammed, and because the passenger door would not latch, it had to be tied shut with a rope. James (Jimmy) Valdez, a friend of defendant, had recently come to stay at the Lemon Hill house. He was contributing to the household by “boosting” (i.e., stealing) food. On May 23, 1987, defendant and Valdez spent the day drinking beer and tequila at the house.

Sometime early in the evening, defendant’s girlfriend, Yolanda Gomez, remarked that “[sjince Jimmy’s here, we got everything.” Defendant responded by saying to Valdez, “Let’s take a ride.” Both men were intoxicated at this point, but defendant was able to speak, walk, and drive normally. With defendant driving the Plymouth, the two men arrived at the Beacon gasoline station at 44th Street and Fruitridge Road. The station includes a small convenience store. Two clerks, Tina Cheatam and John Waltrip, were on duty inside the store.

Each clerk was responsible for a particular cash register and had the only key for that register. Also in the store was Lawrence Galvin, a district manager for the Beacon chain. Around 8 p.m., Waltrip and Galvin were in the rear of the store, restocking the display of cold beverages. Waltrip, who was out of sight in the storage cooler, was passing merchandise through to Galvin, who was standing in front of the beverage cases. Defendant and Valdez entered the store and walked toward the beverage cases. Valdez grabbed a 12-pack of beer and ran out.

As Cheatam yelled for Valdez to stop, defendant grabbed her from behind and held a knife to her hip. Galvin began to move forward, and defendant told him to “freeze.” Defendant then ordered Cheatam to open her register. Cheatam was standing in front of Waltrip’s register and tried to tell defendant she did not have the key to open it. Defendant grew angrier, shouted obscenities, and continued to demand money. Cheatam became hysterical, pounded hopelessly on Waltrip’s register, and indicated to defendant that the “other clerk” would have to open it.

Defendant told her, “Well, get the guy out here.” Cheatam then screamed “several times” for Waltrip. Waltrip finally emerged from the back room and said, “Here I am.” Approaching from behind defendant, Waltrip stepped up onto the slightly elevated register area, causing the floor to creak. At this moment, according to Galvin, defendant turned, placed his left hand on Waltrip’s right shoulder, pulled Waltrip toward him, drew back his right elbow to a 90-degree angle, and “very, very violently” thrust the knife into Waltrip’s midsection. The blow made a “thunk” sound, like a fist hitting a punching bag.

Waltrip doubled over and stumbled into the store’s back office. Meanwhile, Cheatam had managed to open her own register. Defendant reached in . and swept the cash out of the till with a deft scooping motion. In doing so, he triggered a hidden camera, which sequentially photographed ensuing stages of the holdup. While the robbery was in progress, Edgar Calderon entered to pay for some gas, but Calderon withdrew when defendant told him to “get the hell out.” After cleaning out Cheatam’s register, defendant brandished the knife at Galvin and forced him to lie down on the floor. Defendant then left.

Outside, Valdez was waiting in the passenger seat of the Plymouth, puzzled by the delay and anxious to depart with the stolen beer. When defendant approached the car at a run, Valdez slid behind the wheel and defendant got in the passenger side. They sped away northbound on 44th Street. At the first intersection, Valdez started to turn right, but defendant told him it was a dead end, and Valdez swerved back onto 44th Street. As he did so, Calderon, who was keeping the vehicle in sight, saw the passenger door fly open.

After defendant had departed from the store, Galvin locked the front door and entered the back office. There Waltrip was lying unconscious with the telephone in his hand. Galvin took the telephone and called the police. Waltrip died of his wound during emergency surgery. The cause of death was loss of blood. The knife had penetrated to a depth of nine or ten inches, passing completely through Waltrip’s abdominal wall and liver and piercing the front wall of the aorta. Defendant and Valdez returned to the Lemon Hill house and divided the money from the robbery, either $45 or $90.

Valdez heard defendant tell Gomez he had robbed the Beacon store. Gomez’s friend Sonya White also overheard this comment and defendant implied that White should forget what she had heard. Later the same evening, defendant and Victor Trejo went on a quest to obtain drugs. They were driving a van owned by Trejo’s father. Defendant had avoided using the Plymouth because it was “a little warm.” At one point, Trejo wanted to return the van to his father, but defendant pulled a knife and held it to Trejo’s neck.

Defendant told Trejo he did not want to have to make a “movita,” or move, on Trejo, “like he already did to someone else.” Trejo complied with defendant’s demand to continue on in the van. Trejo eventually dropped defendant off at the Lemon Hill house. At defendant’s request, Valdez then went with defendant in the Plymouth to obtain still more drugs. Late that night, defendant discussed the Beacon robbery and told Valdez, “I think I killed somebody.” The next day, defendant and Valdez walked to a nearby store and bought a newspaper.

The paper contained an account of the Beacon robbery, including a description of the red Plymouth. Defendant read the story and told Valdez “[t]hat the guy died at the gas station.” When defendant and Valdez returned from the store, defendant moved the Plymouth into the backyard of the Lemon Hill house, where the police later found it. Valdez asked defendant what he had done with the knife used to kill Waltrip. Defendant went to the kitchen and grabbed a knife, which Valdez described as about 12 inches long. Valdez took the knife and broke it up with his hands.

Valdez then made plans to “split” the Lemon Hill house immediately. Sometime after the Beacon incident, defendant met his mother, Adeline Rodriguez, in a park. Crying, defendant told her he had robbed the Beacon station and killed a man there, though he “didn’t mean to do that.” According to defendant, somebody had grabbed his shoulder from behind, and he turned. Defendant said he did not want to go to prison and needed time to get away and think. A couple of days later, defendant called Rodriguez and asked for money. About two weeks after the Beacon incident, Valdez saw defendant at McClatchy High School.

Defendant told Valdez, “Don’t worry about nothing, home boy, I ride my own beef.” Defendant acted paranoid, said homicide detectives were at his house, and indicated he wanted to go to Mexico. Defendant presented a single witness, Dr. Gwen Hall, a forensic pathologist. Based on the autopsy report, she disputed the depth of Waltrip’s wound and opined that the autopsy findings were not consistent with a violent, audible knife blow such as Galvin had described.

Asked to estimate the blood-alcohol level at 8 p.m. of a 170-pound man who had drunk 12 twelve-ounce beers and 6 glasses of tequila between 11 a.m. and 5 p.m., Dr. Hall opined that it would be between .17 and .27 percent. At that level, she suggested, such a person might appear normal, especially if he was a chronic drinker, but his judgment might still be grossly distorted by alcohol intoxication. 2. Judy N. Incident—June 5, 1987. On June 5, 1987, 13 days after the Beacon incident, defendant borrowed a brown 1970’s Plymouth owned by Nelda Smith.

About 3 p.m. that day, Judy N. was driving eastbound in her 1986 Honda on highway 50, a freeway in Sacramento. Defendant, driving the brown Plymouth, came into her lane from the right and bumped the right front fender of her car. She signalled defendant to pull over, and they both parked on the shoulder just west of the 51st Street overpass. After they inspected the minor damage, defendant advised that he had no insurance. Ms. N. suggested they exchange names and telephone numbers. She reentered her car to obtain writing paper and a pen. She offered him the pen, which he refused.

She then used the pen to write her own name and telephone number, as well as the license number of defendant’s car. She tore off the license number and began to hand defendant the remainder of the paper. As she did so, he reached in the driver’s window and wadded up the paper. Startled, she looked up to see him pointing a revolver at her. Defendant demanded Ms. N.’s purse and wallet. She said she had only 23 cents with her and opened her wallet to show that it contained no cash. Defendant asked if she had automatic teller machine (ATM) cards, and she acknowledged that she did.

She then complied with defendant’s instructions to bring her purse and wallet, follow him, and get into the passenger seat of the brown Plymouth. Defendant entered the driver’s side and placed the gun in his lap, pointed at her. He asked the location of the nearest machine that would accept her ATM card. She mentioned the “college campus” nearby and said she would try to direct him from the next freeway exit, at 59th Street. Defendant began to drive, meantime instructing Ms. N. to remove all her clothing below her waist. He said this was to keep her from trying to get away.

She took off her shoes, jeans, pantyhose, and underpants. Defendant left highway 50 at the 59th Street exit, but then doubled back westbound on S Street, which runs parallel to the south side of the freeway. Near the intersection with 55th Street, defendant parked and told Ms. N. they were going to return to her car. At his direction, she put her jeans and shoes back on, and defendant put her underpants in his pocket. The two then climbed over a chain link fence and clambered down a steep embankment to the freeway. Eventually they arrived on foot at her vehicle. Defendant directed Ms.

N. to get behind the wheel, again remove her jeans and shoes, and begin driving. She did so. He asked about her husband and children, the family’s financial status, and their credit and ATM cards. Because she feared for their safety, she told defendant falsely that she had no children. She also advised, among other things, that she and her husband had ATM cards for Golden One Credit Union and Sacramento Savings. Defendant said, “We’ll go to the Golden One. I know where there’s a Golden One.” He began to direct her, by freeway and surface road, in a southwesterly direction through Sacramento.

As they drove, defendant demanded Ms. N.’s watch and wedding ring. She handed them over. Defendant pulled out her underpants, began to fondle them, and asked questions about her sex life. At length, he held the gun on her and said “I want you to play with yourself like you’ve never done before.” At his direction, she inserted her finger in her vagina. Defendant then reached over and inserted his own finger in her vaginal opening. While they were en route, they passed a number of police cars, and this caused defendant to become more and more agitated. On several occasions, he advised Ms.

N. to drive carefully and avoid attracting attention. Each time, he warned that he had killed before, and it would not bother him to kill again. He indicated that the killing had occurred about two weeks before, and he asked if she had read about it in the newspaper. At length, they were travelling westbound on Florin Road, and they seemed to be headed toward the Golden One branch at Florin Road and interstate 5. Before they reached that location, however, defendant instructed Ms. N. to turn left.

When she said, “I thought we were going to the credit union,” he replied with a smirk, “We’ll get there.” Eventually they crossed the Sacramento River into Yolo County. In a rural area, they left the paved highway and travelled on a dirt road. Finally they arrived at an isolated clearing. At defendant’s direction, Ms. N. got out, went to the back of the car, placed her hands on the bumper, and leaned over. Defendant pulled down his pants and pressed his penis against her anus. He then told her to take off the rest of her clothes. She did so, dislodging an earring in the process. When Ms.

N. was naked, defendant said, “Have you ever sucked [expletive] ?[] Well, you’re going to, now. Come here.” He pushed her head down, causing his penis to penetrate her mouth. He continued to push on her head, saying, “Move. Move harder.” Defendant next directed Ms. N. back into some trees where there was another clearing. He said, “Now, we’re going to do it doggy style.” At his direction, she got down on her hands and knees on his T-shirt. Defendant knelt behind her and remarked, “Nice white ass.” Again he pressed his penis against her anus. Then he penetrated her vagina with his penis.

Defendant eventually withdrew and said he wanted a blanket. Ms. N. told him there was one in the back of her car. He returned with the blanket and spread it on the ground. At his direction, she lay down on the blanket, whereupon he entered her vagina with his penis a second time. During this rape, defendant thrust hard and bit her breast. Defendant and Ms. N. then returned to her car. Defendant opened the trunk, got out her purse, and removed ATM cards for two different Golden One accounts. At his direction, she told him the personal identification numbers for these cards, and he wrote the numbers down.

He then tied her hands with his belt and put a gag in her mouth. Displaying the gun, he ordered her into the trunk. From inside the trunk, Ms. N. felt the car return to the paved road, recross the bridge into Sacramento County, and continue. After awhile, the car stopped for several minutes, than began moving again. When it stopped a second time, defendant got out and opened the trunk. They were back in Yolo County, at the isolated clearing where the assaults had occurred. Defendant ordered Ms. N. out of the trunk and untied her hands. At his direction, she put her T-shirt back on and got behind the wheel.

He told her to remove the gag. In doing so, she dislodged her other earring. Ms. N. then began driving back toward Sacramento, as defendant instructed. Before they reached the bridge, he ordered her to stop on the shoulder. He said he had already gotten money from one of her ATM cards, and he showed her the receipt, but he seemed frustrated at some aspect of the transaction. He asked where her Sacramento Savings card was. She said it had been on the passenger seat when their collision occurred and must have fallen on the floor of the car.

At his direction, she put her jeans back on, searched for the card, and found it. He asked how much money he could get with this card, and she said $900. Defendant began looking through Ms. N.’s purse, then noticed she was wearing a gold necklace with a Disneyland pendant. He told her to take off the necklace and put it around his neck. Her hands trembled, however, and she could not work the clasp. Defendant unfastened the necklace himself. Defendant ordered Ms. N. to remove her jeans again and resume driving. As they proceeded, he turned his attention once more to her purse and wallet.

Finding photographs of her children, he angrily reminded her that she had claimed to be childless. She told him the pictures were of her nieces and nephews. Defendant responded, “If you’re lying to me, I’ll blow you away, right now. Don’t lie to me. If I find somewhere on these pictures that says ‘Mom’ anywhere, you’re dead.” Defendant also became angry when he found a $20 bill tucked in a side pocket of her wallet. She told him truthfully that she had forgotten about the bill. Defendant took it. Defendant directed Ms.

N. to the Golden One branch located in a shopping center at Mack Road and Franklin Boulevard in Sacramento. He ordered her to park and wait. He cradled the revolver in his left arm and draped his T-shirt over it. He then emerged from the car and got into the ATM line. Ms. N. noticed a security guard and sensed a chance to escape. Still naked from the waist down, she snatched her jeans, got out of the car, pointed to defendant, and shouted that he had a gun. She then ran into a nearby hardware store.

Around 6 p.m. on June 5, 1987, Linda McCord had parked her yellow 1974 Ford pickup next to the Golden One ATM at Mack Road and Franklin Boulevard. She did some grocery shopping, returned to the truck with her purchases, placed them in the truck bed, and entered her vehicle. As she attempted to start her engine, she heard a loud thump and felt the truck move. She looked around and saw a man with a gun in the bed of the truck. At the same time, she heard voices saying, “He has a gun,” and saw people ducking behind cars. The man told her to get out of her truck.

He then came around to the driver’s window, still brandishing the gun. He opened the door and slid into the driver’s seat. As he did so, McCord escaped out the passenger door, leaving her keys in the ignition. When the police arrived, they directed McCord to go into the hardware store. There she was told to stand next to Ms. N. During the time they were together, Ms. N. was visibly upset. Ms. N. said two things over and over to McCord. One was a warning that “[wjhatever you do, never get in a car.” The other was a declaration that her abductor had stated to her, “Haven’t you been reading about me in the papers?

I’m the man who killed the man in the Beacon Gas Station.” Shortly after 6 p.m. on June 5, 1987, Sacramento police officers Steven Spillmer and Henry Luckie, in separate cars, were parked in the Mack Road shopping center discussing police business. A man approached and told the officers about a naked woman and someone with a gun near the Golden One ATM. Spillmer responded. When he reached the ATM, witnesses told him that the gunman had fled northward on Franklin Boulevard. Spillmer pursued and soon spotted a yellow pickup travelling erratically at high speed.

Spillmer followed, keeping the pickup in sight through several turns until the truck hit a curb in a residential neighborhood and rolled over. Defendant was arrested in the truck, which belonged to McCord. Various items of Ms. N.’s property, including the ATM cards, were found on his person at the scene. A loaded handgun was also recovered from the truck. Defendant was transported to a hospital for treatment of injuries sustained in the rollover. Ms. N. was taken to the same hospital for a medical examination. While there, she spontaneously observed defendant and identified him as her assailant.

She identified him again at trial. Police recovered $423 in cash (21 $20 bills and 3 $1 bills) from under the mattress of defendant’s hospital gurney. Also retrieved from defendant’s person or clothing at the hospital were Ms. N.’s necklace, watch, and wedding ring, an ATM receipt on Ms. N.’s Golden One account, and a live .22-caliber bullet. An employee of Golden One confirmed that between 5:21 p.m. and 5:24 p.m. on June 5, 1987, ATM withdrawals of $200 each, the maximum daily allowance, were made from two separate accounts belonging to Ms. N. and her husband. The cash was supplied in $20 bills.

The withdrawals were made from the Florin Road branch, and the person who made them was videotaped. Six unsuccessful attempts to withdraw money from the same accounts were made at the Mack Road ATM between 6:18 p.m. and 6:21 p.m. the same day. These transactions were also videotaped. Neither Ms. N. nor her husband used their Golden One ATM cards on June 5, 1987. Defendant’s fingerprints were found on the brown Plymouth. They were also found at several locations on Ms. N.’s Honda. Her earring was located at the remote Yolo County location she described as the site of the sexual assaults. B. Penalty Trial. 1.

Prosecution Case-in-chief. a. Rypich Robbery—June 6, 1979. On June 6, 1979, Daniel Rypich, then 64 years old, and his wife Lucy were returning to their car after purchasing groceries at the Farmers Mart in Sacramento. Defendant, then 16 years old, grabbed Daniel around the neck from behind and held a knife in his back. Defendant told Daniel to hand over all his cash or he would be killed. Daniel gave defendant $223. As defendant fled from the scene, a rust-colored Chevrolet, license No. CEA 026, picked him up and sped away. A witness provided the police with the license number.

Defendant was arrested driving the car the next day. Daniel never saw defendant’s face, but two days after the robbery, Lucy positively identified him from a photo lineup. She also emphatically identified him at the juvenile proceeding arising from the incident. Beatrice Arriaga, defendant’s girlfriend in 1979, testified he told her “he got 200 [dollars] from the old man” at the Farmers Mart. b. Priscilla Lane Shooting Incident—August 14, 1981. Around 11 p.m. on August 14, 1981, James Barger was in the driveway of his house on Priscilla Lane. He heard a shot.

Moments later, a car turned onto Priscilla Lane from Fruitridge Road. Defendant, wearing a long coat, emerged from the back of the car. A female voice shouted, “There he is,” whereupon defendant pulled a rifle from the car and fired into the yard of the comer house, 5571 Priscilla Lane. Defendant then ran in the direction of his shots and disappeared from Barger’s view. Barger heard the sound of gunfire five more times. Barger entered his own house, told his wife to call the police, and returned outside with a .45 automatic. Someone in the car shouted, “Get out of here," and the vehicle sped away.

As it did so, defendant, who was still carrying the rifle, ran past Barger. Barger leveled his pistol at defendant’s back and ordered him to freeze. Defendant dropped the rifle and approached Barger, who instructed him to lie down in the street. A crowd of Black and Hispanic youths assembled. In their protective company, defendant got up and walked around the comer onto Fmitridge Road. Barger followed, keeping defendant in sight. When the police arrived, Barger pointed out defendant in the crowd. Defendant was arrested, handcuffed, and placed in a police car with another suspect in the incident.

In their conversation, which was tape-recorded, defendant threatened to return and kill Barger. When police entered the back-yard of 5571 Priscilla Lane, they found Andrew Benanato cowering under a bush. Spent shell casings and bullet strafe marks were discovered nearby. c. High-speed Chase Incident—July 22, 1985. In the early afternoon of July 22, 1985, Ernest Daniels, a plainclothes narcotics officer, was parked in an unmarked vehicle on 38th Street at 22nd Avenue, near a house where drug activity was suspected. Defendant’s car stopped in front of the house.

Suspicious, Daniels emerged from his own car, displayed his badge, announced his identity, and approached defendant’s car. Defendant sped away on 38th Street, a narrow residential road. Daniels gave chase, activating his siren and red light. Another police car tried to cut defendant off at 20th Avenue but was forced to swerve aside to avoid a collision. Defendant ran a stop sign at 21st Avenue and violated a yield sign at 19th Avenue. Children playing in the street had to scramble to safety. The pursuit ended at 16th Avenue, where defendant was arrested for resisting an officer.

Two locking-blade knives were found on his person. d. Chiefs Auto Parts Store Robbery—February 16, 1987. Late on the evening of February 16, 1987, Richard Lam was working as assistant manager of the Chief’s Auto Parts Store on Broadway in Sacramento. John Geddes was the other employee in the store. Defendant and another man entered, inquired about a part, and left. An hour later, they returned, pressed knives into the backs of Lam and Geddes, and ordered them to lie down. Defendant attempted to open the register, and when unable to do so, ordered Lam to open it.

Defendant took the bills from the register and left. Meanwhile, defendant’s accomplice tore loose a television set that was bolted to a shelf. Carrying the television, the accomplice followed defendant out of the store. e. Assault and Robbery of “Joe”—May 23, 1987. On the evening of the Beacon robbery and murder, defendant and James Valdez later went to a house on 20th Avenue to negotiate a $20 purchase of heroin. Among the persons present, according to Valdez, were “this lady” and “this guy named Joe.” Valdez indicated he had only $15 and asked for partial credit. The lady refused.

Instead, she handed Valdez a bag containing $10 worth of heroin. Valdez immediately injected this entire amount, telling defendant, “Well, I tried to help you, home boy, but I can’t. All I got is a dime [i.e., $10].” Defendant became angry and ran toward the lady, brandishing a knife. Joe got up to meet him. The two men fell to the floor, and a struggle ensued. Joe was cut on the hand while defending himself from defendant’s knife. When the lady screamed for Valdez to “do something,” Valdez replied, “See, I told you [you] should have gave us the dope.” The lady handed Valdez another bag of narcotics.

Valdez then approached defendant, who was still struggling with Joe, and said, “Hey, Pete, Pete, I got the dope.” Defendant stopped fighting, jumped up, snatched “all the dope and money,” and ran out to the car. f. Assault on Miguel Pina—May 26, 1987. On May 26, 1987, three days after the Beacon incident, defendant’s girlfriend, Yolanda Gomez, telephoned Miguel Pina, a high school acquaintance, and asked him to meet her at a store near Pina’s residence. When Pina arrived, Gomez told him she was in some trouble. They began to walk and talk. Suddenly, defendant appeared and hit Pina on the head with a pistol.

As Pina reeled backward, defendant screamed, “Who the fuck are you? What the fuck are you doing here?” Defendant held the gun to Pina’s head and asked several times, “Do you want to know how it fucking feels to die?” Defendant asked Gomez who Pina was. She said he was a stranger from whom she had asked directions. Pina agreed, and told defendant he was just going to the store. Defendant forced Pina against a wall and ripped off Pina’s necklace, scratching Pina’s neck. Defendant threw the necklace down when he realized it was fake gold.

Finally, defendant told Pina to “[g]o into the store if that’s where you’re going to,” and released him. Pina went into a nearby store, where a woman gave him napkins for his bleeding head. Pina’s pistol-whipping wound required five stitches at a hospital. 2. Defense Evidence. Defendant presented witnesses to show that he had suffered a neglected and chaotic childhood, that some people still cared for him, that he had expressed remorse for Waltrip’s murder, and that he could adjust to life imprisonment. Delores Garcia, a friend since childhood, testified that she intended to marry defendant despite his situation.

Garcia said defendant sent her daughter drawings and a tender letter from jail. Marie Alvarado, Garcia’s mother, testified that defendant had always been respectful to her, always called her “mom,” and expressed remorse about the Beacon incident. He wrote to her from jail when she was in the hospital with pneumonia. Several witnesses described defendant’s chaotic childhood. Relatives said that defendant’s mother, Adeline Rodriguez, was a sloppy housekeeper who drank heavily and neglected her children.

Two witnesses described a time when the children were left in the care of a disturbed young man who tried to cut his veins in the children’s presence. Leonard Sanchez, who lived with Rodriguez when defendant was age eight, said the family had no standards, and that drug use was rampant “from the youngest to the oldest.” According to Sanchez, defendant’s older brother introduced defendant to drugs, stealing, and burglary. Sanchez himself sold defendant alcohol. Rodney Hall supervised a foster home where defendant was temporarily placed at age 11.

Hall said defendant was stubborn and angry at first, but his attitude improved over time. Hall developed a rapport with defendant through their mutual interest in auto mechanics. On one occasion, defendant intervened to help Hall’s wife when another resident threatened her with a knife. Hall was concerned for defendant when the home was forced to close two years later, and defendant was returned to his family.

Several jail guards and a jail psychiatric nurse indicated that defendant is hot-tempered and retaliates when provoked, but he respects authority and his disciplinary record while in jail awaiting trial was at least average. These witnesses suggested that defendant might well adjust to long-term prison life without presenting unusual problems. Testifying as an expert on the state penal system, Jerry Enomoto, former Director of the Department of Corrections, voiced similar opinions after reviewing defendant’s prison file. Finally, defendant presented the expert testimony of Dr.

Albert Globus, a psychiatrist and neurologist. After interviewing defendant, running a number of neurological tests, and reviewing defendant’s personal and medical histories, Dr. Globus opined that defendant shows signs of organic brain damage which would diminish his judgment, his impulse control, and his capacity to intend Waltrip’s murder. In Dr. Globus’s view, causes of this condition might include Rodriguez’s drinking while she was pregnant with defendant, defendant’s own lifelong drug and alcohol abuse, and an untreated illness during defendant’s infancy which may have included a brain infection. Dr.

Globus conceded that defendant also exhibits a form of antisocial personality independent of brain damage. Moreover, Dr. Globus acknowledged that defendant’s intent to rob the Beacon store was not affected by any organic condition. 3. Prosecution Rebuttal. In rebuttal, the prosecution presented the testimony of Dr. Michael Adelberg, a neurologist. Having reviewed Dr. Globus’s report, Dr. Adelberg disputed all bases for Dr. Globus’s opinion that defendant suffers from organic brain damage. Dr. Adelberg concluded that the results of tests administered by Dr.

Globus showed no brain damage but were consistent with a diagnosis of antisocial personality. II. Discussion A. Pretrial and Jury Selection Issues. 1. Severance. Prior to trial, defendant moved to sever counts 1 through 4 (the Beacon murder and robberies) from counts 5 through 15 (the offenses against Judy N.). The trial court denied the motion. Defendant now claims the court’s ruling was prejudicially erroneous. He argues that joinder of the two incidents unfairly portrayed him as a “bad man” who should be convicted on all charges regardless of the evidence.

In particular, he urges, the strong and “inflammatory” Judy N. counts improperly bolstered the prosecution’s marginal case for death eligibility, because the evidence that he intended to kill John Waltrip, a crucial element of the single robbery-murder special circumstance, was weak. These contentions lack merit.

Two or more offenses “of the same class,” or “connected in their commission,” may be charged and tried together, but the trial court may sever counts in the interest of justice. (§ 954.) When exercising its discretion, the court must balance the potential prejudice of joinder against the state’s strong interest in the efficiency of a joint trial. (People v. Bean (1988) 46 Cal.3d 919, 935-936 [251 Cal.Rptr. 467, 760 P.2d 996].) Joinder is generally proper when the offenses would be cross-admissible in separate trials, since an inference of prejudice is thus dispelled. (People v.

Davis (1995) 10 Cal.4th 463, 509 [41 Cal.Rptr.2d 826, 896 P.2d 119]; People v. Sully, supra, 53 Cal.3d 1195, 1222; see Frank v. Superior Court (1989) 48 Cal.3d 632, 639 [257 Cal.Rptr. 550, 770 P.2d 1119].) However, joinder is often permissible even when cross-admissibility is not present. Because of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial. (Williams v.

Superior Court (1984) 36 Cal.3d 441, 451 [204 Cal.Rptr. 700, 683 P.2d 699].) In determining potential prejudice from the joint trial of non-cross-admissible charges, the court should evaluate whether (1) certain of the charges are unduly inflammatory, (2) a “weak” case will be unfairly bolstered by its joinder with other charges, and (3) any of the charges carries the death penalty. (See Davis, supra, 10 Cal.4th at p. 508; People v.

Balderas (1985) 41 Cal.3d 144, 173 [222 Cal.Rptr. 184, 711 P.2d 480].) To demonstrate that a denial of severance was reversible error, defendant must “ ‘clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried.’ ” (People v. Davis, supra, 10 Cal.4th at p. 508, quoting Frank v. Superior Court, supra, 48 Cal.3d at p. 640.) We examine a pretrial severance ruling on the record then before the court. (People v.

Davis, supra, 10 Cal.4th at p. 508.) Even if the ruling was correct when made, we must reverse if defendant shows that joinder actually resulted in “gross unfairness,” amounting to a denial of due process. (People v. Johnson (1988) 47 Cal.3d 576, 590 [253 Cal.Rptr. 710, 764 P.2d 1087].) For the multiple reasons that follow, defendant has not sustained his burden. When ruling on the motion to sever, the trial court carefully weighed all the pertinent issues.

Defendant does not dispute the court’s correct threshold determination that the offenses, all involving assaultive behavior, were of the same class, and thus properly joinable. (People v. Lucky (1988) 45 Cal.3d 259, 276 [247 Cal.Rptr. 1, 753 P.2d 1052]; People v. Balderas, supra, 41 Cal.3d at p. 170.) Though defendant argues otherwise, the court also properly concluded that the pretrial record provided “some evidence” of cross-admissibility on issues of motive, identity, and consciousness of guilt. (Evid.

Code, § 1101, subd. (b).) As the court noted, there was evidence that the kidnapping and robbery of Judy N. was impelled by defendant’s need for money and transportation to escape apprehension for the Beacon crimes, which occurred 13 days earlier. Hence, the Beacon incident supplied evidence of motive for the Judy N. robbery, which in turn indicated consciousness of guilt in the Beacon matter. Moreover, the court cited the prosecution’s representations that during Ms. N.’s ordeal, defendant terrorized her with repeated death threats, boasting that he had killed before and it would not bother him to kill again.

Such statements, the court reasoned, would be competent circumstantial evidence of defendant’s identity as the killer of John Waltrip. Defendant argues that the circumstances of the Judy N. robbery are not within the narrow range of evidence traditionally deemed material to consciousness of guilt. On the contrary, both the pretrial record and the trial itself included evidence that the offenses against Ms.

N. were an outgrowth of defendant’s specific desire to flee apprehension for the Beacon crimes, of which he knew he was suspected. (See fn. 9, ante.) This evidence thus logically supported an inference of consciousness of guilt in the Beacon matter. (See, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1243-1244 [278 Cal.Rptr. 640, 805 P.2d 899].) The trial court also correctly determined that defendant’s admissions to Ms. N. about a prior killing would be valid circumstantial evidence of his identity as John Waltrip’s murderer. (People v.

Johnson (1993) 6 Cal.4th 1, 34 [23 Cal.Rptr.2d 593, 859 P.2d 673].) We therefore agree that the two incidents were cross-admissible. “On that ground alone, there was no abuse of discretion” in denying severance. (People v. Davis, supra, 10 Cal.4th 463, 508.) But the trial court did not rest its ruling exclusively on cross-admissibility. Instead, the court carefully considered other factors bearing on potential prejudice. In particular, it concluded that the evidence in both cases was “very strong,” so that a weak case would not receive unfair support from the joinder of offenses committed at a different time.

Again, the court’s reasoning is convincing. Both at the preliminary hearing and at trial, the evidence establishing defendant as Waltrip’s killer and Judy N.’s assailant was overwhelming. Defendant claims, however, that joinder of the Judy N. crimes prejudiced him on the issue of death eligibility because the evidence of his intent to kill Waltrip was weak. We are not persuaded. Without regard to the Judy N. crimes, the prosecution presented strong evidence that the Beacon murder was intentional.

The defense theorized that defendant stabbed Waltrip reflexively when surprised by the victim’s sudden presence behind him, and that intoxication negated defendant’s ability to intend a killing. However, James Valdez testified that despite their alcohol consumption, defendant was functioning normally. That assessment is supported by defendant’s activities; he drove to, robbed, and made good his escape from, the Beacon store. Indeed, he had the presence of mind to warn Valdez, during the getaway, that a turn Valdez was trying to make would lead to a dead end.

Furthermore, the evidence suggests that Waltrip’s appearance behind defendant was neither sudden nor surprising, but was the direct result of defendant’s own insistence that Waltrip be summoned to open his cash register. When defendant demanded that Tina Cheatam open Waltrip’s register, she explained that only the “other clerk” had the proper key. Defendant ordered her to “get the guy out here,” and she responded by calling several times for Waltrip to come forward.

According to eyewitness Galvin, Waltrip announced his approach with the words, “Here I am.” These facts belie defendant’s theory of a purely reflexive act impelled by surprise. Most persuasive of all is the evidence of the manner in which Waltrip was killed. Galvin testified that as Waltrip approached, defendant reached up, pulled Waltrip toward him, drew his elbow far back, and struck a violent, audible knife blow into Waltrip’s body. This account was consistent with the autopsy surgeon’s finding that the blade penetrated to a depth of nine or ten inches, piercing firm abdominal and liver tissues in the process.

From all this evidence, a jury instructed on intent to kill, as this jury was, could readily find that at the moment of the stabbing, defendant acted with a specific lethal purpose. On its own merits, the direct and circumstantial evidence of homicidal intent was not only legally sufficient, but convincing. Under such circumstances, there is little chance that defendant’s crimes against Judy N. tipped the balance toward a finding that he intended to kill Waltrip. Thus, he fails to demonstrate that the denial of severance was an abuse of discretion, or that it resulted in “gross unfairness” at his trial.

Accordingly, we reject his claim. 2. Defendant’s Plea Offer—Judy N. Counts. After severance had been denied, and before jury selection began, defendant renewed a motion previously withdrawn that he be allowed to plead guilty to all the charges involving Judy N. and Linda McCord (counts 5 through 15), including the related enhancements, and that the prosecution thereafter be barred from presenting evidence about those crimes. Defendant further offered not to assert the plea as a bar to Ms. N.’s “sanitized” testimony that on June 5, 1987, defendant told her he had killed before and would kill again.

The prosecutor opposed the motion, urging as before that the circumstances of the Judy N. incident bore on consciousness of guilt and identity in the Beacon case. The prosecutor also argued that the facts surrounding defendant’s threats against Ms. N. bore on his intent to kill John Waltrip. The trial court denied the motion without prejudice, stating that it could not accept defendant’s conditions before hearing the prosecution evidence. The court invited defendant to renew his motion at a later time. Defendant never renewed the motion, and no guilty plea was entered.

Defendant urges that the prosecutor wrongly opposed his motion and that the trial court erroneously denied it. He asserts that the conditions he offered eliminated all legitimate bases for cross-admissibility of the two incidents. Thus, he complains, the People’s insistence on a trial of the Judy N. counts was intended only to cause him unfair prejudice in the Beacon case. We find no error or impropriety. In essence, defendant, having lost his bid for severance, offered to stipulate to his commission of the Judy N. crimes in order to keep them from a jury considering his guilt of the Beacon crimes.

But “[t]he general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness. [Citations.]” (People v. Edelbacher (1989) 47 Cal.3d 983, 1007 [254 Cal.Rptr. 586, 766 P.2d 1]; see also People v. Garceau (1993) 6 Cal.4th 140, 182 [24 Cal.Rptr.2d 664, 862 P.2d 664].) As the prosecutor argued, defendant’s proposed stipulation was not an adequate substitute for trial evidence showing the relevance of the Judy N. offenses to the Beacon crimes.

Defendant did not offer to admit his consciousness of guilt of the Beacon murder and robbery, or that he was John Waltrip’s murderer. Had the circumstances of the Judy N. crimes been withheld from the jury, the People would have lost material circumstantial evidence on these issues. Thus, the prosecutor could not have shown that the Judy N. robbery was motivated by a need for money and transportation to escape apprehension for the earlier Beacon crimes. Moreover, defendant’s boast that he had killed two weeks before was strong circumstantial evidence of his identity as Waltrip’s killer.

If this statement had been artificially divorced from its context, it would have lacked the weight it deserved on that issue. Without knowledge of the surrounding circumstances, the jury could not have evaluated whether defendant’s statement was mere idle jest or braggadocio, entitled to little credence. But the fact that defendant repeated this murderous boast many times as a threat intended to facilitate further armed felonies was a material indication that his claim of a prior killing was true. The prosecution was entitled to present this information, and the jury was entitled to hear it.

As noted above, the prosecutor also argued that defendant’s threats to Judy N., and the circumstances in which they were made, were admissible as evidence that defendant intended to kill Waltrip. Defendant now contends the two incidents were not sufficiently similar to allow use of the Judy N. incident to prove intent to kill in the Beacon case. The point is immaterial, however, since as we have indicated, the challenged evidence was admissible on other grounds.

Defendant claims the record contains evidence that the prosecution’s insistence on capital charges and a full joint trial of both incidents was in bad faith.

In particular, he asserts (1) the prosecution was improperly influenced by the Judy N. crimes when deciding whether to seek the death penalty for the Beacon murder, (2) joinder of the Judy N. charges was intended to persuade the jury, even at the guilt phase, that he deserved death, and (3) use of his threats against Judy N. to prove his intent to kill Waltrip was improper because the prosecution actually did not believe he stabbed Waltrip with lethal intent.

These arguments are based primarily on a pretrial telephone conversation between defendant and Assistant District Attorney Patrick Marlette, to whom defendant’s case was then assigned. The call was initiated by defendant. Marlette made notes of the conversation, and his portion of the dialogue was tape-recorded. During the call, defendant sought a bargain whereby he could plead guilty to the Beacon murder, even if that meant the death penalty, but on condition that the sex charges involving Judy N. be dismissed so they would not be on his record when he was executed.

Marlette cautioned that defendant should not be speaking to him, since “it’s my job to see that you’re executed.” Marlette refused to dismiss the Judy N. charges, noting that he had defendant “wrapped up pretty tight” and that “I’ve got a rape victim out there [who] as much as anybody else deserves to have her crime represented.” During a discussion of the Waltrip murder, Marlette remarked that “it looked to me like for a split second there you were not absolutely in control of the situation.

And in that split second, the first thing you just like instinctively did was reach out and cut the dude.” Nothing in this conversation demonstrates the bad faith defendant asserts. There is no inherent impropriety in a prosecutorial decision to join capital and noncapital charges, where, as here, joinder is otherwise proper. (See discussion, ante, at pp. 126-129.) Moreover, absent a showing of arbitrary and invidious discrimination, prosecutors have wide latitude when selecting those eligible cases in which the death penalty will actually be sought. (People v.

Keenan (1988) 46 Cal.3d 478, 505-507 [250 Cal.Rptr. 550, 758 P.2d 1081]; cf. McCleskey v. Kemp (1987) 481 U.S. 279 [95 L.Ed.2d 262, 107 S.Ct. 1756].) Among the “[m]any circumstances” bearing on that decision (Keenan, supra, 46 Cal.3d at p. 506), the prosecution may consider that the charges against the accused include other serious violent crimes against different victims. Defendant implies that by telling defendant “it’s my job to see that you’re executed,” Marlette revealed a disregard for his duty, as an officer of the court, to seek a just disposition. We disagree.

Marlette sought only to caution defendant that an unrepresented conversation between them was not in defendant’s best interest. And his remark merely acknowledged that the prosecution had indeed decided to seek the death penalty. We must, of course, presume that this decision was “ ‘legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement. [Citation.]’ ” (People v. Keenan, supra, 46 Cal.3d at p. 506, quoting People v.

Haskett (1982) 30 Cal.3d 841, 860 [180 Cal.Rptr. 640, 640 P.2d 776].) Nor are we persuaded that Marlette’s casual remark about an “instinctive” stabbing demonstrates bad faith in the prosecution’s theory that defendant was death eligible because he intended to kill. The evidence supported an inference of intent to kill, and nothing in Marlette’s comment was necessarily inconsistent with such a conclusion. In any event, the remark reflected at most the personal opinion of Marlette, who ultimately did not even try the case.

The prosecution assured the trial court that all charging decisions were made by the district attorney himself, without regard to the conversation between defendant and Marlette. Defendant’s claims must therefore be rejected. 3. Wheeler Motion. Before the final jury was sworn, defense counsel interposed a so-called “ Wheeler motion” alleging that the prosecutor had used peremptory challenges to exclude members of racial and ethnic minorities from the jury. (People v.

Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748].) Counsel observed that, of the prosecutor’s fifteen challenges, the first was exercised against Curmiller Barber, who was Black, the fourth against Trinidad Campos, who was Hispanic, the fifth against Mildred Staples, who was Black, the sixth against Susan Cox, who was Hispanic, and the ninth against Lydia Nevarez, who was Hispanic. This pattern, counsel argued, demonstrated a “systematic” purpose of discrimination.

The court declared a brief recess so the prosecutor could “go get his notes and respond.” When court reconvened, the prosecutor first observed that there were three Hispanic jurors, David Sanabria, Wanda Francisco, and Neal Navarro, one Black juror, Christine Wynn, and one Hispanic alternate, Rita Delgado. He also charged that the defense had dismissed Hispanic panelists Nancy Cano and Stacy Gonzales, Black panelist Homer Hyland, and Asian-American alternate panelist Eric Nakao. On this basis, the prosecutor argued, defendant had not made out a prima facie case of “systematic” exclusion.

The court responded, “[w]ell, I have questions about their making a prima facie showing, but I want you to go on.” At this point, opposing counsel engaged in another brief debate about defense dismissals and the composition of the existing jury. The court made no comment. The prosecutor then proceeded to explain his reasons for each excusal challenged by the defense. In doing so, he referred both to questionnaire responses and to voir dire answers given by each of the dismissed panelists. At the conclusion of the prosecutor’s presentation, the court denied the defense motion.

The court ruled there was no “systematic exclusion” of minorities, “since we do have minorities on the existing jury.” The court further found “that for the reasons . . . you’ve stated ...[,] you were justified in exercising a peremptory challenge.” Noting that both sides had dismissed minority panelists, the court found “that ... all [such dismissals were] justified under the circumstances from the questions given.” Finally, the court formally found that the existing jury comprised a representative cross-section of the community.

Before us, defendant renews his challenges to the prosecution’s dismissal of panelists Barber, Campos, and Nevarez. The applicable principles are clear. “The California Constitution forbids the use of peremptory challenges to discriminate against members of a ‘cognizable’ racial, religious, ethnic, or other identifiable group. ([People v.] Wheeler, supra, 22 Cal.3d 258.) The federal Constitution similarly proscribes discriminatory challenges on the basis of race. (Powers [v. Ohio (1991)] 499 U.S. 400 [113 L.Ed.2d 411, 111 S.Ct. 1364]; Batson [v.

Kentucky (1986)] 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712].)” (People v. Montiel (1993) 5 Cal.4th 877, 909 [21 Cal.Rptr.2d 705, 855 P.2d 1277].) One who believes his opponent is using peremptory challenges for improper discrimination must object in timely fashion and make a prima facie showing, i.e., demonstrate a strong likelihood that prospective jurors are being excluded because of race or group association. (E.g., People v. Davenport (1995) 11 Cal.4th 1171, 1199-1200 [47 Cal.Rptr.2d 800, 906 P.2d 1068]; People v. Crittenden (1994) 9 Cal.4th 83, 115 [36 Cal.Rptr.2d 474, 885 P.2d 887]; People v.

Garceau, supra, 6 Cal.4th 140, 170.) If the trial court finds a prima facie case, the burden shifts, and the party whose peremptory exclusions are under attack must then provide a race- or group-neutral explanation, related to the particular case, for each suspect excusal. (E.g., People v. Turner (1994) 8 Cal.4th 137, 164-165 [32 Cal.Rptr.2d 762, 878 P.2d 521]; People v.

Fuentes (1991) 54 Cal.3d 707, 714 [286 Cal.Rptr. 792, 818 P.2d 75].) When the trial court solicits an explanation of the challenged excusáis without first indicating its views on the prima facie issue, we may infer an implied prima facie finding. (People v. Montiel, supra, 5 Cal.4th 877, 910, fn. 8; People v. Fuentes, supra, 54 Cal.3d 707, 716-717; People v. Johnson (1989) 47 Cal.3d 1194, 1217 [255 Cal.Rptr. 569, 767 P.2d 1047]; see also Hernandez v.

New York (1991) 500 U.S. 352, 359 [114 L.Ed.2d 395, 405-406, 111 S.Ct. 1859].) The court cannot undo an implied ruling once made by stating after explanations have been received that it never intended to find a prima facie case. (Fuentes, supra, 54 Cal.3d at p. 717.) Once an implied prima facie finding has been made, that issue becomes moot, and the only question remaining is whether the individual justifications were adequate. (Montiel, supra, 5 Cal.4th at p. 910, fn. 8; Fuentes, supra, 54 Cal.3d at p. 717; see Hernandez, supra, 500 U.S. at p. 359 [114 L.Ed.2d at pp. 405-406].) Here, the trial court asked for individual explanations, but only after stating it had “questions” about the defense’s prima facie showing.

The court’s expression of doubt negates any inference that it made an implied finding either way about the existence of a prima facie case. (See People v. Davenport, supra, 11 Cal.4th 1171, 1200-1201 [prima facie finding cannot be inferred, and prima facie issue is not moot, where court fails to interrupt prosecutor’s immediate attempt to give individual explanations]; People v.

Turner, supra, 8 Cal.4th 137, 166-167 [similar conclusion where trial court expressly found absence of prima facie showing, but then requested explanation in abundance of caution].) For this reason, the record provides us with no ruling on that issue which we might examine for abuse of discretion. (Cf. People v. Turner, supra, 8 Cal.4th 137, 167; People v.

Fuentes, supra, 54 Cal.3d 707, 716-717, fn. 5.) Therefore, despite our own substantial doubts that defendant made a prima facie showing of discriminatory challenges by the prosecutor, we bypass that question and proceed directly to a determination whether the court’s ultimate acceptance of the prosecutor’s justifications can be sustained. We review such a determination with great restraint. The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. (People v.

Fuentes, supra, 54 Cal.3d 707, 718; People v. Johnson, supra, 47 Cal.3d 1194, 1216; People v. Hall (1983) 35 Cal.3d 161, 167-168 (197 Cal.Rptr. 71, 672 P.2d 854]; see Batson v. Kentucky (1986) 476 U.S. 79, 97-98, & fn. 20 [90 L.Ed.2d 69, 88-89, 106 S.Ct. 1712].) The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice. (People v.

Montiel, supra, 5 Cal.4th 877, 910, fn. 9; Johnson, supra, 47 Cal.3d at p. 1218.) “If the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory 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. [Citations.]” (People v. Montiel, supra, 5 Cal.4th 877, 909.) With these standards in mind, we conclude that the instant trial court’s ruling satisfies Wheeler!Batson standards.

Certain aspects of the trial court’s findings were neither necessary nor relevant, since a Wheeler violation does not require “systematic” discrimination (People v.

Fuentes, supra, 54 Cal.3d 707, 715-716, & fn. 4) and is not negated simply because both sides have dismissed minority jurors or because the final jury is “representative.” However, after observing the relevant voir dire examinations and hearing the prosecutor’s extensive explanations, the court also found in effect that the reasons offered for each individual suspect excusal, including those of panelists Barber, Campos, and Nevarez, were both genuine and acceptably nondiscriminatory.

The record discloses no basis for suspicion that the court’s effort to evaluate the prosecutor’s good faith in this regard was anything other than “ ‘sincere and reasoned.’ ” (People v. Montiel, supra, 5 Cal.4th 877, 909.) Hence, if the responses given by the individual excused panelists support the court’s findings, we must accept them.

As to Barber, the prosecutor explained he had marked some 34 of her questionnaire responses for purposes of follow-up at voir dire, “not the least of which [were] in the death penalty area,” but “ [t]his was a woman who’d never thought of it [i.e., the death penalty],” and despite his efforts to elicit her views in his oral examination, she “could not articulate anything.” Barber’s verbal difficulties frustrated his efforts to get through all 34 of the suspect written responses, and he “did not consider her ... a very bright woman.” He further noted that Barber’s daughter was currently being prosecuted by his office, that the daughter’s public defender had admonished against discussing the case, and that Barber “even testified . . . as a witness for her daughter, presumably against the People.” Finally, he expressed concern about the substance of Barber’s expressed views on capital punishment, which suggested that she might not impose the death penalty against a robber who killed unexpectedly to make a getaway.

The prosecutor’s expressed concerns about Barber’s attitudes toward law enforcement and capital punishment are amply supported by the record. When asked in her questionnaire to describe her “general feelings regarding the death penalty,” Barber responded, “I have never thought about it.” When asked if her death penalty views had changed in the last few years, Barber responded, “None.” When asked what types of cases deserved the death penalty, Barber responded, “Deliberate murder[,] planned murder for financial gain or to marry someone else.” She also described her daughter’s pending criminal charge.

On voir dire, Barber again stated she had never given much thought to capital punishment. Moreover, when responding to questions by defense counsel, she elaborated upon her view that the death penalty should be reserved for “deliberate” or “premeditated” murders. “I wouldn’t say [it] was deliberate,” she theorized, if someone went in to rob a bank, without “any intentions of killing anyone,” but then fired back at a guard who was trying to prevent an escape. Barber also confirmed her daughter’s criminal case, in which she had been called to testify as a character witness.

The hypothetical posed by Barber was uncomfortably similar to the facts of the Beacon homicide. Accordingly, the prosecutor could deduce that she might be an undesirable penalty juror in this case. He could also surmise that her daughter’s adversary contact with the criminal justice system might make Barber unsympathetic to the prosecution. (See People v. Turner, supra, 8 Cal.4th 137, 171; People v. Walker (1988) 47 Cal.3d 605, 625-626 [253 Cal.Rptr. 863, 765 P.2d 70].) The record thus supports the conclusion that the excusal of Barber was proper.

As to Campos, the prosecutor cited soft and reluctant responses and considerable ambivalence about capital punishment. The prosecutor suggested that Campos believed the death penalty discriminates against poor people, and that Campos questioned whether anyone has the right to decide whether another will die. Such views, the prosecutor asserted, might make Campos unduly susceptible to psychiatric and background defenses at the penalty phase. Again, the prosecutor’s reservations are supported by the record.

In his jury questionnaire, Campos stated that while the death penalty was needed, “the justice system does not affect the rich and poor the same” and “discriminates between rich [and] poor due to unequal representation.” At one point during voir dire, the prosecutor commented to Campos that “you’re very hard to hear speaking.

You’re a very soft-spoken person.” During the examination, Campos said he could handle the responsibilities of a penalty juror, but it would be “tough,” and “[the] question, you know, comes across my mind as far as whether ... we have the right to—to decide whether somebody else should die . . . .” Campos also explained his opinion that poverty works against one accused of crime because he may lack the resources necessary to protect his rights and present the best defense.

Such views, while unobjectionable in general society, could cause a prosecutor to suspect that Campos might be particularly reluctant to impose death, regardless of the evidence, and might readily accept a penalty defense based on an impoverished background. The prosecutor could also worry that Campos’s soft-spoken demeanor signalled an inability to discuss or maintain his views during deliberations. The record thus supports the conclusion that Campos was properly excused.

As to Nevarez, the prosecutor connected her youth (age 25) to certain of her responses which, in the prosecutor’s view, suggested her lack of involvement in society and apparent distrust of the system. For example, he observed, Nevarez had a child though never married, was not registered to vote, and had agreed the police should not be called when her boyfriend suffered thefts and burglaries. Further, the prosecutor suggested, her questionnaire responses indicated confusion about concepts of forensic psychiatry.

Finally, citing specific portions of Nevarez’s voir dire examination, he noted that she considered the responsibilities of a penalty juror “unfair” and had agreed, at one point, that her feelings about the death penalty might substantially impair her ability to render a death verdict, regardless of the evidence. He indicated that, after reading Nevarez’s questionnaire answers, he had rated her a “one,” his lowest category. The record confirms Nevarez’s age, her marital and parental status, her failure to register as a voter, and her response to the crimes against her boyfriend.

It also bears out other concerns cited by the prosecutor. Thus, when asked in the questionnaire whether she understood she was not bound to accept the opinions of a psychiatrist or psychologist as conclusive, she responded, “I do not understand.” On voir dire, Nevarez largely explained away this answer by indicating she now understood.

She also retracted, as the result of misunderstanding, her initial voir dire statement that her death penalty views might hamper her abilities, and she insisted that “I’m for the death penalty.” However, she adhered to her view that the burden of deciding whether to impose that penalty was “unfair.” Nevarez denied that this feeling would influence her decision, but the prosecutor had reason not to want a juror resentful of the personal obligation to consider a capital verdict.

Under all the circumstances, the record substantially supports the trial court’s conclusion that Nevarez, like Barber and Campos, was properly excused. Accordingly, defendant’s Wheeler claim must fail. 4. Denial of Separate Guilt, Enhancement, and Penalty Juries. In a pretrial motion, and again prior to the penalty phase, defendant sought empanelment of a separate jury to hear penalty issues. At the conclusion of the guilt trial, defendant also moved for a separate jury to hear the enhancement allegation that he had suffered a previous conviction. All these motions were denied.

Defendant claims these rulings violated his rights under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, because a jury which has already adjudicated the issue of guilt cannot fairly evaluate uncharged criminal conduct introduced at the enhancement and penalty phases. We have repeatedly rejected such contentions (e.g., People v. Espinoza (1992) 3 Cal.4th 806, 827 [12 Cal.Rptr.2d 682, 838 P.2d 204]; People v. Bacigalupo (1991) 1 Cal.4th 103, 135-136 [2 Cal.Rptr.2d 335, 820 P.2d 559]; People v.

Balderas, supra, 41 Cal.3d 144, 204-205, & fn. 32), and defendant presents no persuasive reason to reconsider. We therefore decline to do so. B. Issues at Guilt Trial. 1. Instructional Issues. a. CAUIC No. 17.02. Defendant requested CALJIC No. 17.02, which instructs in cases involving multiple counts that each must be decided distinctly and separately, and that the defendant may be found guilty or not guilty of any or all charges. Defendant claims the trial court erred when, after agreeing to give this instruction, it inadvertently failed to do so.

However, the reporter’s transcript indicates that the instruction was given. b. Cautionary Other-crimes Instruction. Defendant makes the related claim that his counsel was ineffective for failing to request an instruction that a guilty verdict on one or more of the joined charges could not be considered as proof that he is a person of bad character or criminal disposition and thus committed the other charged crimes.

However, the case law suggests that such a limiting instruction is not necessary or proper in a case where charges are properly joined, particularly where, as here, CALJIC No. 17.02 was given. (See People v. Kegler (1987) 197 Cal.App.3d 72, 81-82 [242 Cal.Rptr. 897]; People v. Thornton (1979) 88 Cal.App.3d 795, 804 [152 Cal.Rptr. 77]; People v. Jackson (1975) 45 Cal.App.3d 67, 70 [119 Cal.Rptr. 71].) The claim of ineffective assistance of counsel lacks merit. c. CAUIC No. 2.03.

Defendant claims the trial court erred in giving CALJIC No. 2.03, which instructs that if the accused made a willfully false or deliberately misleading pretrial statement about the charged offenses, such statement may be considered as tending to show consciousness of guilt but cannot alone prove guilt. We have consistently upheld the giving of this instruction where it is supported by evidence. (People v. Turner, supra, 8 Cal.4th 137, 202; People v.

Kelly (1992) 1 Cal.4th 495, 531 [3 Cal.Rptr.2d 677, 822 P.2d 385].) The prosecutor sought the instruction on the basis of defendant’s statements to his mother, Adeline Rodriguez, that he did not mean to stab anyone at the Beacon store but became startled and acted reflexively when someone put a hand on his shoulder. These statements, the prosecutor urged, were contrary to the testimony of eyewitness Galvin that victim Waltrip did not touch defendant, but that defendant put his hand on Waltrip’s shoulder and pulled Waltrip toward him before stabbing him.

Defendant urges there" is no evidence his statements to Rodriguez about the way the stabbing occurred were fabrications. As the People suggest, however, in light of the contrast between eyewitness accounts which suggested a deliberate action, and defendant’s claim of mere reflex, a jury could reasonably infer that the statements were self-serving falsehoods intended to cast his conduct in the least culpable light. (See People v.

Green (1980) 27 Cal.3d 1, 40-41 [164 Cal.Rptr. 1, 609 P.2d 468] [instruction proper where only evidence of statement’s falsehood is its inconsistency with prosecution case at trial].) That defendant also expressed remorse to Rodriguez does not negate such an inference, since the jury could conclude that such expressions were also self-serving and insincere. Defendant nonetheless claims the jurors should at least have been told that CALJIC No. 2.03 did not permit them to use defendant’s statements against him on the issue of intent to kill. For two reasons, the claim lacks merit.

First, defendant’s statements to Rodriguez were, in effect, attempts to deny that he intended to kill Waltrip. If the jury found these statements were lies, they would logically suggest that defendant did intend to kill, and that he harbored a consciousness of that fact. Second, the instruction told the jury only that pretrial lies may bear on “consciousness of guilt” (italics added); a reasonable jury would understand this phrase to mean only “consciousness of some wrongdoing,” not consciousness of each and every element of the charged offense. (People v.

Crandell (1988) 46 Cal.3d 833, 871 [251 Cal.Rptr. 227, 760 P.2d 423].) “The instruction[] [does] not address the defendant’s mental state at the time of the offense and [does] not direct or compel the drawing of impermissible inferences in regard thereto.” (Ibid:, accord, People v. Breaux (1991) 1 Cal.4th 281, 304 [3 Cal.Rptr.2d 81, 821 P.2d 585]; People v. Nicolaus (1991) 54 Cal.3d 551, 579-580 [286 Cal.Rptr. 628, 817 P.2d 893].) Hence, no clarifying instruction was necessary. Defendant contends that CALJIC No. 2.03 is an improper “pinpoint” instruction. (See People v.

Wright (1988) 45 Cal.3d 1126 [248 Cal.Rptr. 600, 755 P.2d 1049].) We recently rejected the identical contention. As we explained, “CALJIC No. 2.03 . . . does not merely pinpoint evidence the jury may consider. It tells the jury it may consider the evidence but it is not sufficient by itself to prove guilt. [Citation.]... If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. Nothing in Wright affects such an instruction. There was no error.” (People v.

Kelly, supra, 1 Cal.4th 495, 531-532, italics in original.) d. Failure to Give Accomplice Instructions. Defendant contends that prosecution witness James Valdez was, or at least may have been, an accomplice in the Beacon robbery.

Hence, defendant urges, the trial court erred by failing, sua sponte, to instruct the jury on the law of accomplices, including the requirements that an accomplice’s testimony must be corroborated and should be viewed with distrust. (§ 1111; CALJIC Nos. 3.11, 3.18.) For instructional purposes, an accomplice is a person “who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111; People v. Sully, supra, 53 Cal.3d 1195, 1227; People v.

Miranda (1987) 44 Cal.3d 57, 99 [241 Cal.Rptr. 594, 744 P.2d 1127].) Defendant suggests that Valdez was implicated in the robbery murder insofar as he created a diversion by stealing beer, then drove the getaway car. The evidence indicates that Valdez had no advance knowledge of the robbery, did not intend his beer stealing as a robbery diversion, and had left the store, still ignorant of defendant’s intentions, before the robbery began.

On the other hand, the robbery may have been a reasonably foreseeable consequence of the agreed plan to steal merchandise from the store, and Valdez did help defendant transport robbery proceeds away from the scene. These are arguable grounds for charging Valdez, as an aider and abettor, with both the robbery and the attendant felony murder of Waltrip. (See, e.g., People v. Montoya (1991) 7 Cal.4th 1027, 1040-1041, 1044 [31 Cal.Rptr.2d 128, 874 P.2d 903].) However, we need not resolve whether the failure to give accomplice instructions under these circumstances was error.

The omission of such instructions, even if erroneous, is deemed harmless where there was ample evidence corroborating the witness’s testimony. (People v. Sully, supra, 53 Cal.3d 1195, 1228; People v. Miranda, supra, 44 Cal.3d 57, 100.) Valdez’s testimony about defendant’s perpetration of the Beacon robbery murder was amply corroborated by the eyewitness identifications of Lawrence Galvin and Edgar Calderon, by Sonya White’s testimony that defendant admitted the robbery, and by defendant’s threat to Victor Trejo that he had already made a “movita” on someone else that night. Defendant thus suffered no prejudice.

For similar reasons, there is no merit to defendant’s claim that the failure to give accomplice instructions violated his right to due process under the Fourteenth Amendment of the United States Constitution. No basis for reversal appears. 2. Right of Absence From Trial; Prejudicial Effect of Defendant’s Outburst.

Defendant urges that his Sixth and Fourteenth Amendment rights to a fair trial, and to an impartial jury, were violated when the trial court erroneously refused his request to be absent from the trial, thus forcing him to engage in disruptive behavior and display his courtroom restraints while the jury was present. We find no error and no cognizable prejudice. The relevant facts are as follows: Pursuant to the court’s usual policy, defendant was restrained when in the courtroom by handcuffs, and by a chain, not visible to the jury, which fit around his waist and attached to the counsel table.

On several occasions both before and during trial, defendant had been disruptive in open court, interjecting protests about his lawyers’ performance or the proceedings in general. During a recess on the morning of November 2, 1989, defense counsel announced that defendant believed the prosecution was engaging in “gamesmanship” by calling surprise witnesses. According to counsel, “[defendant] does not want to be a part of it” and was asking to be excused. After satisfying itself that the defense had received proper discovery, the court said, “let’s proceed.” Defendant raised no objection.

The prosecution then presented witness Linda McCord. The lunch recess was called at the completion of McCord’s direct testimony. At the commencement of the afternoon session, defense counsel advised the court, outside the jury’s presence, that defendant believed the trial was unfair, no longer wished to be present, and had threatened disruption if forced to remain. A three-way conversation ensued among court, counsel, and defendant. The court explained that it read the cases to require defendant’s nonwaivable presence at all stages of a capital trial.

Defendant indicated that the court’s insistence on his continued presence made him feel “boxed in a comer” and “might” make him do something he would “regret.” Ultimately, the court decided that “we’re going to continue [i.e., proceed with] the trial this afternoon.

I will give you an opportunity to renew your request in the morning with some citations that would allow me to proceed in [defendant’s] absence. . . .” (Italics added.) The court expressed a desire to finish with the current witnesses and asked defendant to cooperate for the rest of the afternoon because “[w]e’ve only got a couple of hours to go.” Later that afternoon, during the examination of witness Steven Spillmer, the court called a 15-minute recess.

Outside the jury’s presence, the court noted that for about 30 minutes, there had been a sound like handcuffs clicking together, and that a juror had complained. At the bailiff’s suggestion, the court ordered defendant’s handcuffs to be double-locked. The court warned that while it wished to avoid shackling, it would resort to that measure if necessary. Defendant responded that “[i]f you don’t shackle me up, now, you’ll have to do it later on. So I’d like to be shackled in front of the jury.” The court extended the jury recess, during which defendant was apparently taken “downstairs” to use the restroom.

When he returned, the court observed, outside the jury’s presence, that he had tom off his overshirt, but did have an undershirt on, at which point defendant quipped, “Temporarily.” Defense counsel pointed out that defendant had also tom open his pants, leaving his undershorts exposed. Counsel moved for a continuance on grounds of defendant’s disheveled appearance. The prosecutor objected, asking that the current witness, at least, be completed. The court agreed, noting that defendant could be seated close to the counsel table so his tom pants would not be visible to the jury.

The jury was recalled, and the examination of Spillmer continued. Defendant interrupted with a request that he be excused from the proceedings. The court denied the request. The following colloquy then occurred in the jury’s presence: “The Defendant: Excuse me, [y]our Honor, but I’m trying to tell you I’d like to be excused. I been trying to tell you that all this afternoon, so if you don’t mind— [H The Court: I will indicate to you, Mr. Arias, that if you continue your disruptive behavior— ['JO The Defendant: That’s what I been trying to tell you.

I know what you’re trying to tell me, and that’s what I have been asking. [*][] The Court: Just sit down and be quiet. You are already sitting down. Just be quiet. [<fl] The Defendant: Well, I got no choice. I have got this chain around my stomach. Ffl] The Court: There will be more chains to you tomorrow if— [U The Defendant: That’s good.

Whatever it takes. [f| I’d like to be excused, [f] The Court: Just be quiet. [U The Defendant: I’d like to be excused from these proceedings, if you don’t mind. [10 The Court: I indicated to you no. “The Defendant: This is—I tell you I want to be excused, and you give me no other choice, but to dismpt the courtroom.

And I’m trying to express to you I’m facing a death penalty case, and I’d like to be excused for a moment so I can get myself composed. [(fl] Excuse me, [yjour Honor, [f] The Court: Would you pull him around from the table. [U The Defendant: I’m trying to tell you, I’d like to be excused, if you don’t mind. [<][] The Court [to the prosecutor]: Go ahead. [U . . . [U The Defendant: Excuse me, [y]our Honor. Trying to tell you, right now, I’d like to be excused from the courtroom, [f] The Court: I will tell you, Mr.

Arias, if you continue acting this way, you will have a gag in your mouth. [H The Defendant: Well, gag me if you want to. But I’d like to be excused from the courtroom.” At this point, the court called the evening recess and excused the jury. The court noted for the record that defendant had tom off his T-shirt and removed his pants and shoes, and had been knocking his chains on the counsel table. The court warned defendant again that if a similar disruption occurred the next day, he would be further chained and gagged. Defense counsel protested that defendant could not appear before the jury in such a fashion.

Counsel suggested defendant be allowed to observe the proceedings on closed-circuit television in an adjoining room. The court indicated there were no adjoining rooms, and it was aware of no procedure for closed-circuit television. Furthermore, the court observed, “we can’t put Mr. Arias in a position of running the courtroom.” The court announced that the trial would proceed in the morning and asked the sheriff to be prepared “with appropriate chains, and, if necess

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