THE PEOPLE, Plaintiff and Respondent, v. MANUEL MACHADO ALVAREZ, Defendant and Appellant, 14 Cal. 4th 155

Opinion MOSK, J. This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment including a sentence of death rendered under the 1978 death penalty law (id., § 190 et seq.). For the reasons that follow, we shall affirm. I. Introduction In the Sacramento Superior Court, defendant, Manuel Machado Alvarez, and a codefendant, Belinda Denise Ross, were charged in an amended information by the Sacramento District Attorney on behalf of the People, as follows. In count 1, defendant and Ross were each charged with murdering Allen Birkman. (Pen.

Code, § 187, subd. (a).) For death eligibility, they were each alleged to have committed the offense in the course of a robbery (id., § 211) or an attempted robbery (id., §§211, 664)—the so-called felony-murder-robbery special circumstance. (Id., § 190.2, former subd. (a)(17)(i), as added by § 6 of Prop. 7, approved by initiative, Gen. Elec. (Nov. 7, 1978); accord, Pen.

Code, § 190.2, present subd. (a)(17)(A).) For enhancement of sentence, defendant was alleged to have personally used a deadly or dangerous weapon, viz., a knife. (Id., § 12022, subd. (b).) In count 2, defendant and Ross were each charged with robbing Birkman. For enhancement of sentence, defendant was alleged to have personally used a deadly or dangerous weapon, viz., a knife. For the same purpose, he was also alleged to have intentionally and personally inflicted great bodily injury. (Pen. Code, former § 12022.7, as amended by Stats. 1979, ch. 145, § 17, p. 341; see Pen.

Code, present § 12022.7 [making no reference to the intentional infliction of great bodily injury].) In count 3, defendant was charged with stealing a vehicle belonging to Edwin Glidewell, viz., a 1975 Chevrolet Camaro. (Veh. Code, former § 10851, as amended by Stats. 1986, ch. 1214, § 1, pp. 4293-4294, repealed by terms of Stats. 1989, ch. 930, § 11, p. 3260; accord, Veh. Code, present § 10851.) In count 4, defendant was charged with raping Sandra S. (Pen. Code, § 261, former subd. (2), as amended by Stats. 1986, ch. 1299, § 1, pp. 4592-4593; accord, Pen.

Code, § 261, present subd. (a)(2).) In count 5, defendant was charged with robbing Greta Slatten. For enhancement of sentence, he was alleged to have personally used a deadly or dangerous weapon, viz., a blunt instrument. For enhancement of sentence, defendant was separately alleged to have been convicted of a serious felony, viz., voluntary manslaughter (Pen.

Code, § 192, subd. (a)) with personal use of a deadly weapon, prior to his commission of the offenses identified in counts one, two, four, and five, which were themselves serious felonies. (Id., § 667, subd. (a).) For enhancement of sentence, Ross was separately alleged to have been convicted of a serious felony, viz., robbery with personal use of a firearm (Pen. Code, § 12022.5), prior to her commission of the offenses identified in counts one and two, which were themselves serious felonies. Defendant and Ross each pleaded not guilty to the charges and denied the allegations.

Trial as to guilt for defendant and Ross jointly was by jury. On Ross’s motion in the midst of the proceedings pursuant to Penal Code

section 1118.1, the superior court ordered the entry of a finding that the felony-murder-robbery special circumstance alleged against her was not sustained because the evidence was insufficient. The jury rendered a guilty verdict against defendant for the murder of Birkman and fixed the degree at the first; together therewith, it made an express finding that he committed the offense in the course of a robbery or attempted robbery, and that he acted with intent to kill; it made a further express finding that he personally used a deadly weapon.

It rendered a guilty verdict against Ross as an accessory to the murder of Birkman, but not for the crime itself. In addition, it rendered a guilty verdict against defendant for the attempted robbery of Birkman, but not for the completed crime; together therewith, it made an express finding that he personally used a deadly weapon; it made a further express finding that he intentionally inflicted great bodily injury, and an implied finding that he did so personally. Similarly, it rendered a guilty verdict against Ross for the attempted robbery of Birkman, but not for the completed crime.

It next rendered a guilty verdict against defendant for the theft of Glidewell’s vehicle. It also rendered a guilty verdict against him for the rape of Sandra S. Finally, it rendered a guilty verdict against him for the robbery of Slatten; together therewith, it made an express finding that he personally used a deadly weapon. Waiving a jury trial on the question, Ross admitted that she had previously been convicted of the alleged serious felony of robbery with personal use of a firearm.

The superior court proceeded to render judgment against Ross: It imposed a sentence of imprisonment comprising a total term of eight years and eight months—three years as an accessory to the murder of Birkman; eight months for the attempted robbery of the same victim (after sixteen months were stayed); and an additional five years for the serious felony enhancement. Trial as to penalty for defendant was by the same jury. The panel rendered a verdict of death.

After defendant waived a jury trial on the question, the superior court found that he had previously been convicted of the alleged serious felony of voluntary manslaughter with personal use of a deadly weapon. Denying, among other motions, an application by defendant for modification of the verdict of death under Penal Code

section 190.4, subdivision (e), the superior court proceeded to render judgment as follows: For the murder of Birkman, it imposed a sentence of death, staying a sentence of imprisonment for a term of one year for the enhancement for personal use of a deadly or dangerous weapon.

For the other offenses, it imposed a sentence of imprisonment comprising a total term of seventeen years and eight months— eight months for the theft of Glidewell’s Camaro (after sixteen months were stayed); six years for the rape of Sandra S.; five years for the robbery of Slatten, with an additional year for the enhancement for personal use of a deadly or dangerous weapon; and an additional five years for the serious felony enhancement; a term of three years for the attempted robbery of Birkman, with an additional year for the enhancement for personal use of a deadly or dangerous weapon, was stayed.

It also ordered payment of a restitution fine in the amount of $10,000, and a crime prevention fine in the amount of $10. II. Facts For convenience, we shall set out the facts as disclosed at the guilt phase and then the facts as disclosed at the penalty phase. A. Guilt Phase The People presented the jury with a story to the following effect. In November 1986, defendant was released on parole after serving a term of imprisonment for what would be revealed to be convictions for voluntary manslaughter and assault with a deadly weapon in the Los Angeles Superior Court in 1982.

He was bound to Los Angeles by the conditions of his parole. In March 1987, in violation of such conditions, defendant moved from Los Angeles to Sacramento. Over the following months, he lived, on and off, with Leslie Colyer and Neetelfer Hawkins. He spent the major part of his time obtaining and consuming drugs and alcohol. On May 12, late at night, defendant was socializing outside an apartment building. Present also was Sandra S. She lived in one of the units with her lover and her son. She was then working as a prostitute. Defendant was drunk, and was vomiting.

He made a sexual advance on her, but was repulsed. She eventually returned to her apartment, and went to bed. On May 13, about noon, Sandra S. awoke. Her lover and her son were not at home. She had a “real bad feeling.” Looking toward the foot of the bed, she saw defendant. He was standing with his zipper open, and was masturbating. She said, “Oh, God, no.” In a voice that was firm and serious, he responded, “Oh, God, yes.” She called for her lover. With coldness and calculation, he said, “He can’t help you now.” He then began to rape her. Percy Spence, who was one of her friends, walked in.

He asked, “Are you having a date?” She yelled, “No, no[,] no, no, it’s not.” Defendant stated, “Yes, it is.” Several times, she repeated, “No, it’s not.” Spence said, “Oh, man, don’t be doing that,” and ran out. When defendant was finished, he put into his pants a long knife in a sheath, which he had evidently brought to the scene. Anthony Simpkins, another of Sandra S.’s friends, had arrived by this time. As he was entering, he passed Spence. Simpkins asked, “[Wjhat’s happening[?]” Spence answered, “[0]h, just let it be.” Sandra S. ran to Simpkins almost hysterical, and told him defendant had raped her.

Defendant fled. As he did so, he proceeded up the street in the direction of Edwin Glidewell, with whom he was acquainted. Glidewell owned a 1975 Chevrolet Camaro, which was parked nearby with the key in the ignition. Defendant jumped into the driver’s seat, started the engine, and took off. Glidewell gave chase, but failed in the effort. On May 15, defendant met Ross as she was cashing a welfare check she had received earlier that day. With him at the wheel of Glidewell’s Camaro, they immediately set out to obtain and consume drugs and alcohol. They continued to do so over the days that followed.

In the course of their wanderings, they visited, among others, defendant’s friend Neetelfer Hawkins and a friend of Ross named Gail Patton. On May 17, late in the morning, defendant asked Ross to drive Glidewell’s Camaro as he rode as a passenger. She entered a shopping center. He directed her to an office of the Golden 1 Credit Union. She parked, and he exited. At 11:28 a.m., Allen Birkman, a civilian identification technician for the Sacramento Police Department, withdrew $60 from his wife’s account at the credit union’s automatic teller machine.

Defendant accosted Birkman; a struggle ensued; defendant stabbed Birkman in the heart. Ross pulled out of the parking space, and defendant managed to jump in. They made good their escape. Birkman called for help. Within seconds, a passerby named Charles Kosobud came to his aid. Birkman was holding his right hand to his chest, and had blood flowing through his fingers; he had a wallet in his left hand; he was swaying. Steadying him, Kosobud asked if they had robbed him; Birkman responded, “No, but they tried.” Kosobud asked who. Birkman responded, “Two blacks.” (Ross is an African-American.

Defendant is, in his own words, “Spanish and Islander,” meaning “[a] native [Cuban].”) Birkman soon collapsed onto the ground. Officer Calvin Lim of the Sacramento Police Department arrived at the scene. Birkman was already receiving emergency medical aid. Within several minutes, he was placed in an ambulance for transport to a hospital; Lim rode along. Birkman had difficulty breathing, and appeared to be in pain; he said he felt numbness or tingling in his body.

Lim asked if he knew who had attacked him; he responded, “[a] male black, approximately six foot tall”—like defendant— who “got into a Camaro.” Within several more minutes, they arrived at the hospital. Sometime before noon, Ross and defendant reached Gail Patton’s apartment, which was not far from the Golden 1 Credit Union. Ross parked Glidewell’s Camaro nearby. She entered the apartment with a long knife and a sheath. She appeared frightened. After wiping the weapon, she told Patton to give it to defendant. Defendant entered some minutes later. He appeared normal. Patton gave him the long knife and the sheath.

Police officers approached Patton’s apartment. Defendant and Ross apparently directed Patton not to say anything. At the apartment’s entrance, the officers told Patton that they were investigating the incident at the Golden 1 Credit Union. They asked whether she knew anything about Glidewell’s Camaro. She answered no. They departed. She told defendant to go. He did so. He left behind the long knife and the sheath. He also left behind Glidewell’s Camaro. About 1:30 p.m., Greta Slatten, who was 78 years old, drove to a convenience store in a 1987 Ford Taurus she had recently bought.

The store happened to be about two-thirds of a mile from Patton’s apartment. There was no other automobile in the parking lot. There was only one other person—defendant. Slatten caught sight of him, and remained in her car with the doors locked. He went to a public telephone. She then exited the vehicle with her purse and keys, locked the doors, entered the store, and made a purchase. As she went to return to her automobile, she passed defendant, who was still at the telephone. She then lost consciousness.

After she came to, she found that she was in a hospital, and had suffered injuries that required suturing with 20 stitches, prevented her from opening her mouth, and blackened the left side of her face from her hairline down through her neck. Defendant had taken her car, her keys, and her purse, and had fled. On May 18, Birkman died as a result of the stab wound he suffered to the heart. The wound could have been inflicted by the long knife that defendant left behind at Patton’s apartment. That day or soon thereafter, Leslie Colyer spoke with defendant over the telephone.

She had earlier been approached by the police, who had inquired as to his whereabouts and advised they were seeking him in connection with a homicide. In the course of the telephone conversation, she told him that the victim of the homicide was a police officer. On May 27, defendant was arrested in Mississippi and jailed. He was apprehended at the wheel of Slatten’s Taurus; Charles Robinson, who was hitchhiking, was a passenger. In the automobile was found a second long knife in a sheath. The next day, Robinson was also arrested and jailed. Defendant and Robinson shared a cell.

Defendant told him that “he had killed a police officer in California”—referring evidently to Birkman. He was later returned to California. The tale that defendant told was different from the People’s. Testifying on his own behalf and introducing other evidence, he denied he had raped Sandra S.: he said she had consented, at least in

part in order to obtain some cocaine he offered. He denied he had stolen Glidewell’s Camaro: he said Glidewell had given him the automobile as security for a debt he incurred when he bought about $400 worth of cocaine from him on credit. He denied he had robbed or murdered Birkman: he said he was elsewhere at the time of the attack, and was the victim of mistaken identity.

He denied he had robbed Slatten: again, he asserted alibi and misidentification; he said he had gotten possession of her Taurus the day she was robbed by giving some cocaine in trade to a young man who called himself “J.R.” He generally denied he had ever had any knife in his possession. The tale that Ross told was also different from the People’s.

Testifying on her own behalf and introducing other evidence, she did not deny defendant had robbed or murdered Birkman; rather, she denied she had possessed the requisite mental state—she said she did not even suspect what he had evidently intended, but had accompanied him out of fear. B. Penalty Phase For the penalty of death, the People relied on the evidence introduced at the guilt phase relevant to the circumstances of the capital offense, which they understood to include the attempted robbery and murder of Birkman, the rape of Sandra S., and the robbery of Slatten.

In addition, the People presented evidence of three prior felony convictions. First, in 1982, in the Los Angeles Superior Court, defendant was convicted of voluntary manslaughter with personal use of a deadly weapon. Second, at the same time and in the same court, he was convicted of assault with a deadly weapon. Third, in 1983, in the San Luis Obispo Superior Court, he was convicted of escape from prison without force or violence.

The People also presented evidence of four instances of criminal activity, beyond the circumstances of the capital offense, that involved the use or attempted use of force or violence or the express or implied threat to use force or violence. The first and second instances comprised the circumstances surrounding the voluntary manslaughter and assault with a deadly weapon convictions. Late one night in 1981, a man ran into a small liquor store in Hollywood. In pursuit was defendant. The man was unarmed. Defendant was brandishing a long knife in his right hand.

The man stopped, and put his hands up in front of him for protection. With his left hand, defendant pulled the man’s hands down, said, “Chinga su madre,” stabbed him fatally through the throat, and then withdrew the blade. Knife in hand, he started to move on one of the store’s clerks. He halted when another of the clerks pulled out a shotgun and told him to stop. He then fled. The third and fourth instances consisted of separate attacks on fellow jail inmates during the pendency of the present proceedings, one in 1987 and the other in 1988, in each of which he punched a victim who could not defend himself.

For life imprisonment without possibility of parole, defendant presented evidence relevant to his background and character. He was bom in Cuba around 1960, and was raised there. As a young child, he suffered a significant injury to his head, which may have contributed to a condition that later showed itself as perhaps epilepsy, and also lost his mother to death. Thereafter, he lived an unstable life, and was subjected to abuse and neglect, especially at the hands of a woman with whom his father set up house. He began to exhibit problem behavior.

He came to the United States in the so-called “Mariel Boatlift” of 1980. He was apparently detained at camps including Fort Chaffee in Arkansas. He went to Richmond, Virginia, in 1981, under the sponsorship of a married couple with small children. He lived with the family about six weeks. He displayed kindness and generosity, but also anger and immaturity. He made his way to California later that year. There ensued the crimes referred to above. For various reasons, social as well as personal, he did not successfully assimilate into American society.

It was opined that he suffered from conditions including “profound emotional immaturity” and “extreme culture shock.” Nevertheless, he was capable of love and helpfulness. For example, he had shown, and continued to show, such qualities in his dealings with Neetelfer Hawkins and with her mother and her disabled son. Defendant also presented evidence responsive to that introduced by the People. Thus, he attempted to disprove one of his attacks on the two jail inmates.

He went into the circumstances surrounding the prison escape conviction, showing, among other things, that, with two other Spanish-speaking prisoners, he had essentially walked away from what was little more than an “honor camp” (albeit after somewhat elaborate planning), offered no resistance to the correctional officers who effected the capture, and even helped them by serving as an interpreter for his two companions.

He also went more deeply into the circumstances surrounding the voluntary manslaughter conviction, revealing in its course that he killed the victim apparently in revenge for the latter’s burglary of the residence of a man who was his lover. III. Discussion Defendant challenges the judgment as to guilt, death eligibility, and penalty. We shall consider his attack point by point. A. Guilt Defendant makes several claims going to guilt. As will appear, none proves to be meritorious. 1. Motion to Suppress Prior to trial, defendant moved the superior court to suppress certain evidence pursuant to Penal Code

section 1538.5, including the second long knife and its sheath. At bottom, he claimed that the evidence in question was the fruit of a stop at a vehicle checkpoint in Mississippi, and that the stop at issue was violative of his right under the Fourth Amendment to the United States Constitution to be secure against unreasonable searches and seizures. After an evidentiary hearing, the superior court denied the motion. At the guilt phase, the second knife and its sheath were introduced into evidence.

Defendant contends that the superior court erred by denying his motion to suppress. “An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [f| In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [<]fl The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.” (People v.

Williams (1988) 45 Cal.3d 1268, 1301 [248 Cal.Rptr. 834, 756 P.2d 221].) After independent review, we discern no error in the legal principles that the superior court impliedly selected: The Fourth Amendment, made applicable to the states through the Fourteenth Amendment’s due process clause (Mapp v. Ohio (1961) 367 U.S. 643, 643-660 [6 L.Ed.2d 1081,1081-1093, 81 S.Ct. 1684, 84 A.L.R.2d 933]; Wolf v. Colorado (1949) 338 U.S. 25, 27-28 [93 L.Ed. 1782, 1785-1786, 69 S.Ct. 1359], overruled on another point, Mapp v.

Ohio, supra, 367 U.S. at pp. 654-655 [6 L.Ed.2d at pp. 1089-1090]), guarantees “the people” “[t]he right ... to be secure . . . against unreasonable searches and seizures . . . .” “[A] Fourth Amendment ‘seizure’ occurs when a vehicle is stopped at a checkpoint” by a law enforcement officer. (Michigan Dept. of State Police v.

Site (1990) 496 U.S. 444, 450 [110 L.Ed.2d 412, 420, 110 S.Ct. 2481].) “The question thus becomes whether such [a] seizure[] [is] ‘reasonable’ under the Fourth Amendment.” (Ibid.) Neither do we discern any error in the facts that the superior court impliedly found, being satisfied that they are supported by substantial evidence: About 8 p.m. on May 27, 1987, at the suggestion of the officer in charge, uniformed troopers of the Mississippi Highway and Safety Patrol (hereafter MHSP) established a checkpoint for routine inspection of drivers’ licenses, vehicle registration, etc., alongside Highway 24, a two-lane east-west road, in Amite County, approximately one-half mile east of Liberty in the southwestern portion of the state; they parked a marked MHSP vehicle on the shoulder with its dome light and emergency lights flashing, and stationed themselves in the line of traffic with their flashlights on; the location was visible from a great distance to vehicles approaching from either direction, and at that time was lightly trafficked; apparently in accordance with MHSP policy or practice, they inspected all vehicles passing in either direction; they generally completed each inspection within 15 or 20 seconds and did not cause any vehicle to move out of its lane of traffic or any driver to exit therefrom.

About 8:30 p.m., they stopped a number of vehicles. One was a Taurus—which belonged to Greta Slatten—traveling east; it bore a Colorado license plate, which had apparently been stolen. Defendant was at the wheel; Charles Robinson, who was hitchhiking, was a passenger. One of the troopers asked defendant for his license; defendant pretended to look; he then requested to pull off the road to continue to do so; the trooper gave permission; defendant eventually acknowledged that he did not have one in his possession.

By this time, the trooper had formed an opinion that defendant might be under the influence of alcohol or drugs, having noticed, among other things, that his eyes were red, his speech was slurred, and his reactions were slow. The trooper asked him to exit the automobile for a field sobriety test; defendant did not comply, but took off in the car; Robinson told him to stop, defendant braked, Robinson jumped out and called on the troopers to pursue, and defendant sped away. The troopers gave chase.

About 10 minutes later, they apprehended defendant sitting outside the automobile and placed him under arrest for driving without a license, speeding, etc. They soon learned that the car had been stolen. Noticing the smell of marijuana, they conducted a search therein: they found a number of items, including the second knife and its sheath, which were under a seat in the passenger compartment, and a sawed-off shotgun, which was in a suitcase in the trunk. The next day, they placed Robinson under arrest for possession of an illegal weapon after he admitted the shotgun was his.

Finally, after independent review, we do not discern any error in the determination that the superior court impliedly made, as it applied the legal principles to the facts, to the effect that defendant’s rights under the Fourth Amendment were not violated: In People v.

Washburn (1968) 265 Cal.App.2d 665, 668, 670 [71 Cal.Rptr. 577] (hereafter Washburn)—on which the superior court expressly relied— the court held in substance that a stop of a vehicle by a law enforcement officer is generally a reasonable seizure for Fourth Amendment purposes, if it is made at a checkpoint for routine license and registration inspection of all passing vehicles. In Delaware v. Prouse (1979) 440 U.S. 648, 663 [59 L.Ed.2d 660, 673-674, 99 S.Ct. 1391], the United States Supreme Court suggested as much.

Indeed, on Professor LaFave’s reading, the court “manifest[ed] approval of the ‘[questioning of all oncoming traffic at roadblock-type stops.’ ” (4 LaFave, Search and Seizure (3d ed. 1996) § 10.8(a), p. 679, quoting Delaware v. Prouse, supra, 440 U.S. at p. 663 [59 L.Ed.2d at p. 674].) The stop of Slatten’s Taurus by the MHSP troopers was a reasonable seizure inasmuch as it was made at the Highway 24 checkpoint for routine license and registration inspection of all passing vehicles.

It was not rendered otherwise by any of the circumstances peculiar to the incident, including the fact that it was established on the initiative of an officer in the field. Tried by the Fourth Amendment’s “touchstone” of “reasonableness” (Florida v. Jimeno (1991) 500 U.S. 248, 250 [114 L.Ed.2d 297, 302, 111 S.Ct. 1801]), it is not found wanting. In arguing against the denial of his motion to suppress, defendant attacks the vitality of Washburn. He is unsuccessful. In Ingersoll v.

Palmer (1987) 43 Cal.3d 1321 [241 Cal.Rptr. 42, 743 P.2d 1299], a so-called “sobriety checkpoint” decision on which he relies perhaps most heavily, we indicated our approval of Washburn. (Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1333 [citing Washburn for the proposition that “[r]egulatory inspections and stops have . . . been permitted under decisions of. . . the California courts . . . in . . . license and registration inspection checkpoints”].) We did not withdraw our approval in any of the cases that followed, including People v.

Banks (1993) 6 Cal.4th 926 [25 Cal.Rptr.2d 524, 863 P.2d 769], another “sobriety checkpoint” case. We will not do so here. Contrary to defendant’s implication, the fact that Washburn does not anticipate the kind of analysis set out in Ingersoll and followed in Banks is not fatal. 2. In Limine Motion to Bar Evidence of Statements by Allen Birkman Prior to trial, defendant moved the superior court, in limine, to preclude the People from introducing certain evidence on the ground that it was inadmissible hearsay. Ross joined therein. The evidence in question comprised statements by Allen Birkman.

Hearsay, of course, is evidence of an out-of-court statement offered by its proponent to prove what it states. (Evid. Code, § 1200, subd. (a).) Unless it comes within an exception, it is inadmissible. (Id., § 1200, subd. (b).) One such exception is for spontaneous declarations, which: (1) “[p]urport[] to narrate, describe, or explain

an act, condition, or event perceived by the declarant” (id., § 1240, subd. (a)); and (2) were “made spontaneously” (id., § 1240, subd. (b)), even if in response to questioning (People v. Poggi (1988) 45 Cal.3d 306, 319 [246 Cal.Rptr. 886, 753 P.2d 1082]), “while the declarant was under the stress of excitement caused by such perception” (Evid. Code, § 1240, subd. (b)).

At an evidentiary hearing, Charles Kosobud testified, in pertinent part, to the following effect: On May 17, 1987, late in the morning, he was near the Golden 1 Credit Union; a man later identified as Birkman called for help; within seconds, Kosobud went to his aid; Birkman—who was stipulated to have suffered a stab wound to the heart—was holding his right hand to his chest, and had blood flowing through his fingers; he had a wallet in his left hand; he was swaying; steadying him, Kosobud asked if they had robbed him; Birkman responded, “No, but they tried”; Kosobud asked who; Birkman responded, “Two blacks”; he soon collapsed onto the ground.

Officer Calvin Lim of the Sacramento Police Department testified, in pertinent part, to the following effect: When he arrived at the Golden 1 Credit Union, Birkman was already receiving emergency medical aid; within several minutes, he was placed in an ambulance for transport to a hospital; Lim rode along; Birkman was semiconscious, had difficulty breathing, was very tense, and appeared to be in extreme pain; he said he felt numbness or tingling all over his body; Lim asked if he knew who had attacked him; he responded, “a male black, approximately six foot tall,” who “had gotten into a Camaro”; within several more minutes, they arrived at the hospital—where it was stipulated he died the next day.

The superior court denied the motion. It impliedly determined that evidence of Birkman’s statements was indeed hearsay. But it expressly determined that it came within, among other exceptions, that for spontaneous declarations. In this connection, it stated that it “recognized” that Kosobud and Officer Lim “asked questions of’ Birkman, and “it wasn’t something that [he] just blurted out.

However, the law is very clear that that doesn’t negate the spontaneity required for spontaneous declarations.” At the guilt phase, Kosobud and Officer Lim testified as to Birkman’s statements in substantially the same terms as they had testified at the evidentiary hearing. Defendant contends that the superior court erred by denying his motion to preclude evidence of Birkman’s statements. Unlike below, here defendant does not argue that the evidence in question was inadmissible hearsay. Indeed, he all but concedes that it came within the exception for spontaneous declarations. Unsurprisingly so.

Instead, defendant argues that the evidence in question was barred by the confrontation clause of the Sixth Amendment to the United States Constitution. Defendant has not preserved his claim for review. “It is, of course, ‘the general rule’ ”—to which we find no exception here—“ ‘that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.’ ” (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [276 Cal.Rptr. 827, 802 P.2d 330], quoting People v.

Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048].) There was neither a “specific” nor “timely” objection below predicated on the Sixth Amendment’s confrontation clause. True, there was a bare reference to the “confrontation rule” (capitalization deleted) in moving papers submitted by defendant. But that was all. And that was not enough. In any event, defendant’s claim is lacking in support in the law.

His argument is, in substance, that, even if evidence of Birkman’s statements came within the exception for spontaneous declarations, it still violated the Sixth Amendment’s confrontation clause. “But where . . . hearsay . . . come[s] within a firmly rooted exception . . . , the Confrontation Clause is satisfied.” (White v. Illinois (1992) 502 U.S. 346, 356 [116 L.Ed.2d 848, 859, 112 S.Ct. 736].) Among such “firmly rooted” exceptions is that for spontaneous declarations. (Id. at p. 355, fn. 8 [116 L.Ed.2d at p. 859].) 3.

Motion to Sever Counts Prior to trial, defendant moved the superior court to sever trial on the counts charging the robbery and murder of Allen Birkman from trial on the counts charging the theft of Edwin Glidewell’s Camaro, the rape of Sandra S., and the robbery of Greta Slatten. Relying, in part, on the evidence introduced at a preliminary examination, he claimed that the two groups of offenses were not properly joined under Penal Code

section 954, and that, even if they were, they should be separated in the interests of justice under the same provision in order to forestall potential prejudice. The superior court denied the motion.

It concluded that the two groups of offenses were indeed “properly joined”: “each of the alleged crimes is, either, of the same class as each of the other crimes or connected in its commission . . . .” It also determined that the offenses did not require separation in the interests of justice: apparently in spite of the fact that he might face the death penalty, defendant had shown “no sufficient [potential] prejudice”—“[w]ith respect to most of the crimes there is cross-admissibility” of evidence; “even if there is no cross-admissibility,” “none of these crimes is a high impact kind of crime in terms of likely emotional impact” and none is substantially “strong[er]” or “weak[er]” than another.

At the guilt phase, all the counts were tried together. Defendant contends that the superior court erred by denying his motion to sever—specifically, insofar as it refused to sever trial of the Sandra S. rape from trial of the Birkman robbery and murder, the Glidewell vehicle theft, and the Slatten robbery. An appellate court reviews a trial court’s ruling on a motion to sever for abuse of discretion. (E.g., People v. Memro (1995) 11 Cal.4th 786, 850 [47 Cal.Rptr.2d 219, 905 P.2d 1305].) Of course, it scrutinizes underlying determinations pursuant to the test appropriate thereto. (See generally People v.

Louis (1986) 42 Cal.3d 969, 985-987 [232 Cal.Rptr. 110, 728 P.2d 180]; Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [264 Cal.Rptr. 139, 782 P.2d 278] [following Louis].) Thus, a conclusion as to whether two or more offenses are properly joined under Penal Code

section 954 is examined independently as the resolution of a pure question of law—whether the offenses are “different statements of the same offense” or are “of the same class of . . . offenses” (Pen. Code, § 954)—or the resolution of a predominantly legal mixed fact-law question —whether the offenses were “connected ... in their commission” (ibid.). By contrast, a determination as to whether separation is required in the interests of justice is assessed for abuse of discretion. (See ibid.; see also People v.

Balderas (1985) 41 Cal.3d 144, 170-171 [222 Cal.Rptr. 184, 711 P.2d 480].) After review, we believe that the superior court did not abuse its discretion by denying defendant’s motion to sever and thereby refusing to sever trial of the Sandra S. rape from trial of the Birkman robbery and murder, the Glidewell vehicle theft, and the Slatten robbery. At the outset, the superior court’s implicit conclusion that the Sandra S. rape was properly joined under Penal Code

section 954 with the Birkman robbery and murder, the Glidewell vehicle theft, and the Slatten robbery survives de novo scrutiny. The Sandra S. rape is “of the same class of. . . offenses” as the Birkman robbery and murder and the Slatten robbery. Rape is an assaultive crime against the person, as are robbery and murder. (People v. Poggi, supra, 45 Cal.3d at pp. 314, 320.) Defendant states that this analysis “does not apply where, as here, multiple defendants are charged in the same information.” His assertion, however, is without basis and must therefore be rejected.

Also, the Sandra S. rape was “connected in [its] commission” with the Glidewell vehicle theft. As shown by the evidence introduced at the preliminary examination—which was similar to that later introduced at trial—the rape occurred very close in time and place to the theft of the vehicle, and the theft of the vehicle may have been motivated by a desire to avoid apprehension for the rape. Defendant admits the close temporal and spatial relationship. He could not do otherwise. But he denies the possible linkage by motive as speculative. True, there was no direct evidence on this matter.

There was, however, sufficient circumstantial evidence to support what the superior court rightly considered a “fair inference.” Further, the superior court’s implicit determination that the Sandra S. rape did not require separation from the Birkman robbery and murder, the Glidewell vehicle theft, and the Slatten robbery in the interests of justice was not an abuse of discretion. Its reason, which is set out above, is indeed reasonable.

Defendant simply failed to show “sufficient [potential] prejudice.” He argues now, as he argued then, that the relatively “weak” evidence of the Sandra S. rape might improperly be amplified by the relatively “strong” evidence of the Birkman robbery and murder, and that the rape might inflame the jury against him with regard to the robbery and murder. He does not persuade us, as he did not persuade the superior court.

His premise is unsupported by the record on appeal: the evidence was not relatively “weak” as to the Sandra S. rape and relatively “strong” as to the Birkman robbery and murder; and the rape was not potentially inflammatory as to the robbery and murder. 4. Motion to Sever Trials Prior to trial, Ross moved the superior court to sever her trial from defendant’s. In like manner, defendant then moved the superior court to sever his trial from hers.

Relying, in part, on the evidence introduced at the preliminary examination, each claimed, inter alia, that the superior court should separate the trials because his or her defense would conflict with the other’s—defendant’s would be alibi and misidentification, Ross’s would be lack of the requisite mental state. Penal Code

section 1098 provided then, as it provides now, that “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials.” The superior court denied the motions, concluding, as pertinent here, that there was an insufficient showing that defendant and Ross would present conflicting defenses and that, even if there had been such a showing, it would not require separate trials: “the mere fact that [they] may well be pointing fingers at each other doesn’t justify necessarily severance.” At the guilt phase, defendant and Ross were jointly tried.

Defendant contends that the superior court erred by denying his motion for separate trials. An appellate court reviews a trial court’s ruling on a motion for separate trials for abuse of discretion. (See Pen. Code, § 1098; see also, e.g., People v. Hardy (1992) 2 Cal.4th 86, 167 [5 Cal.Rptr.2d 796, 825 P.2d 781].) We find no such abuse here. Under Penal Code

section 1098, a trial court must order a joint trial as the “rule” and may order separate trials only as an “exception.” (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2518, p. 3021.) The superior court not unreasonably conformed to the rule and avoided the exception. Its conclusion—that separation was not required even if there had been a sufficient showing that defendant and Ross would present conflicting defenses and might each attempt to shift responsibility to the other—anticipated People v.

Cummings (1993) 4 Cal.4th 1233, 1287 [18 Cal.Rptr.2d 796, 850 P.2d 1], in which we held to that very effect. (Cf. Zafiro v. United States (1993) 506 U.S. 534, 538 [122 L.Ed.2d 317, 325, 113 S.Ct. 933] [decided under Fed. Rules Crim.Proc., rules 8(

b) and 14, 18 U.S.C., which are similar to Pen. Code, § 1098: declining “to adopt a bright-line rule, mandating severance whenever codefendants have conflicting defenses"].) 5. Motion to Limit Physical Restraints Prior to trial, defendant moved the superior court to limit, inter alia, the physical restraints to which it would subject him in the presence of the jury. After a hearing on the motion, it granted his request not to be placed in fetters.

It also stated its intention to cause him to sit in a “security chair” both at counsel table and on the witness stand, and to cause him to be put into, and removed from, such chair outside the jury’s presence. The chair in question was generally similar to others in the courtroom; it was different only in that it allowed a chain encircling his waist to be attached at its back and prevented the chain from being seen so long as he placed his clothing properly.

The superior court asked, “Is there any objection to that procedure?” Defense counsel responded, “No.” It commented that, in the absence of an objection, “it is not necessary ... to specifically state good cause . . . .” Nevertheless, it “stat[ed] ... for the record” that it had obtained information to the effect that, not two months earlier, defendant had been found in possession of an “explosive device” in jail, “apparently consistent with what’s commonly called a match bomb,” which was, specifically, a “device approximately four inches long wrapped tightly in plastic,” containing “match heads” and “several nitroglycerine pills,” with a “paper-wrapped fuse protruding from one end of it.” Defendant did not dispute the information.

Subsequently, in the course of jury selection, the superior court ordered defendant placed in manacles that could be concealed in his lap. It did so because it impliedly determined that he might attempt to escape or at least might injure someone if he became displeased with events as they transpired.

It based its determination on information such as the following: Defendant had attempted to saw through his waist chain; he had tried to take contraband into jail; he had drawings in his cell for the fashioning of a realistic “gun” out of soap; he had engaged in misconduct in jail on several occasions, including “threatening officers, fighting with other inmates, starting fires, [and] possessing weapons of various sorts”; he had exhibited “little if any control over his emotions and little, if any, respect for authority or anyone’s rules”; and he had previously been convicted of an escape from prison, which, although executed without force or violence, had been somewhat elaborately planned.

The superior court stated for the record that he had exposed his manacles to prospective jurors. It told him: “[T]hat’s your choice. If you don’t care that they see that, that’s fine.” It reiterated: “Again, it’s your choice. If it doesn’t bother you that they see that, then that’s fine with the Court.” Before long, it modified its order to allow his right hand to be free. Later, at the guilt phase, the superior court noted outside the presence of the jury that defendant, who was then on the witness stand, had made no attempt to conceal his waist chain at any point during the proceedings.

It offered to give a curative admonition—such as a statement, which it acknowledged was not “entirely true,” that it was “simply flat Court policy” to so restrain a defendant at a death penalty trial. Defendant declined. On reconsideration, it determined that, because the waist chain had been visible, it was required to give an admonition under People v.

Duran (1976) 16 Cal.3d 282, 292 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1], to the effect that “such restraints should have no bearing on the determination of the defendant’s guilt.” It stated that it would in fact give an admonition of this sort unless defendant should object. It further stated that, in giving such an admonition, it would say “something that is not the truth,” such as, “this is standard procedure in all homicide cases or in all death penalty cases, to so restrain the defendant.” Defendant objected.

Defense counsel expressed a view that an admonition that restraints should have no bearing on guilt draws “undue attention” to the restraints themselves. He stated that defendant would probably request an instruction on the matter. The superior court proceeded not to give an admonition. Finally, after defendant did in fact make a request, the superior court instructed the jury as follows: “In your deliberations, the fact that a defendant has been subjected to physical restraints during the trial is not to be discussed or considered by you.

There is no connotation of guilt of any kind because a defendant was restrained. Such restraints are a part of the normal procedures in a case of this nature and should have no bearing on your determination of a defendant’s guilt or innocence.” Defendant now contends that the superior court erred by denying his motion to limit physical restraints. We reject the claim at the threshold. The superior court did not in fact deny defendant’s motion. Rather, it granted what he sought. He asked it to limit physical restraints. It indeed limited such restraints. It ordered no fetters.

It ordered only confinement to a security chair. It questioned whether he objected. Through defense counsel, he answered no. We would also reject the claim on the merits. An appellate court reviews a trial court’s ruling on a motion to limit physical restraints for abuse of discretion. (See, e.g., People v. Duran, supra, 16 Cal.3d at p. 293.) Even if we were to deem that the superior court denied defendant’s motion—which we do not—we could not conclude that it erred thereby.

In view of the undisputed information it had obtained about such matters as his possession of a “match bomb” in jail, it could have determined, not at all unreasonably, that confinement to a security chair was appropriate. 6. Wheeler/Batson Motion In People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748] (hereafter sometimes Wheeler), we held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16 of the California Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [90 L.Ed.2d 69, 79-83, 106 S.Ct. 1712] (hereafter sometimes Batson), and its progeny, the United States Supreme Court held that such a practice violates, inter alia, the defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. African-Americans are a cognizable group for purposes of both Wheeler (People v. Wheeler, supra, 22 Cal.3d at p. 280, fn. 26) and Batson (Batson v. Kentucky, supra, A16 U.S. at pp. 84-89 [90 L.Ed.2d at pp. 79-83]).

Latinos are also such a group under both Wheeler (People v. Trevino (1985) 39 Cal.3d 667, 686 [217 Cal.Rptr. 652, 704 P.2d 719], disapproved on another point, People v. Johnson (1989) 47 Cal.3d 1194, 1221 [255 Cal.Rptr. 569, 767 P.2d 1047]) and Batson (e.g., U.S. v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 698; see, e.g., Hernandez v. New York (1991) 500 U.S. 352, 355 [114 L.Ed.2d 395, 403, 111 S.Ct. 1859] (plur. opn. by Kennedy, J.)). Under Wheeler, there is a presumption that a prosecutor uses his peremptory challenges in a constitutional manner. (People v.

Wheeler, supra, 22 Cal.3d at p. 278.) The defendant bears the burden to show, prima facie, the presence of purposeful discrimination. (Id. at p. 280.) If he succeeds, the burden shifts to the prosecutor to show its absence. (Id. at p. 281.) If he fails, the defendant’s prima facie showing becomes conclusive. (See id. at p. 282.) In such a situation, the presumption of constitutionality is rebutted. (Ibid.) Substantially the same principles apply under Batson. (See Batson v. Kentucky, supra, 476 U.S. at pp. 89-98 [90 L.Ed.2d at pp. 82-89].) Under both Wheeler (People v.

Wheeler, supra, 22 Cal.3d at p. 281) and Batson (Powers v. Ohio (1991) 499 U.S. 400, 404-416 [113 L.Ed.2d 411, 429, 111 S.Ct. 1364]), the defendant need not be a member of the group in question in order to complain. In this cause, the superior court selected the jury substantially as follows. With the parties’ stipulation, it determined to swear 15 jurors to try the case and, after instructions at the guilt phase, to have whatever number that then remained over 12 selected out at random to serve as alternates. It caused a panel of prospective jurors to be called.

It conducted voir dire as to hardship and other matters, including individual, sequestered examination bearing on the death penalty; in the course of such voir dire, it excused several prospective jurors; it had the names of those who remained sorted at random and placed on a list; it then had those panelists drawn into the jury box in accordance with the order on the list; the parties alternately made a peremptory challenge against one of the prospective jurors in the jury box or passed the opportunity and thereby accepted those then sitting (the People had 30 strikes and defendant and Ross had 20 jointly and 5 each individually); in the case of a peremptory challenge, the superior court had the prospective juror subject to the strike replaced with the next one on the list.

It caused a second and then a third panel of prospective jurors to be called, and proceeded in similar fashion. In the midst of voir dire for the first panel of prospective jurors, defendant made a motion, under Wheeler and Batson, for the superior court to commence the process anew, claiming that the prosecutor had used peremptory challenges to strike African-American and Latino prospective jurors on the basis of group membership.

Defense counsel asserted that defendant was “of mixed ancestry, black and Spanish . . . .” Defendant himself declared that he was “Spanish and Islander,” meaning “[a] native [Cuban].” The superior court stated that, “by looking at [defendant], he doesn’t appear to be—[t]o be a mixture of black and Cuban. His appearance, which at least in my opinion, is Cuban or somewhat of that general extraction of Hispanic type.” Ross joined in defendant’s motion. She identified herself as African-American.

The prospective jurors in question were seven in number: Maximina Troyer, identified as Latina (in part); James Del Rosario, identified as Filipino; Charso Elliott, identified as African-American; Sylvia Gonzalez, identified as Latina; Thomas Harris, identified as African-American; Rachel Klose, identified as Latina (in part); and Leon Soto, identified as Puerto Rican. The superior court determined that defendant made a prima facie showing of the presence of purposeful discrimination.

It did so in view of the pattern that had by then emerged: up to that point in time, the prosecutor had peremptorily challenged twelve prospective jurors, comprising the seven identified above and five others, who were apparently European-American; and that, out of the first panel, there remained only one Latino (one had been struck by defendant and Ross jointly) and no African-American (one who was African-American in part had been struck by defendant and Ross jointly). In response, the prosecutor undertook to state his reasons for each of the seven peremptory challenges in question.

Generally, he ranked prospective jurors on a scale of one to five, ranging from the most favorable to the least. He apparently rated Troyer a “five,” citing, among other things, strong personal feelings she expressed on voir dire against the death penalty in general and an acknowledgment she made in the course of examination that her son had been tried for murder and acquitted of that offense.

He apparently rated Del Rosario a “five” as well, on grounds including comments he made on voir dire suggesting an inclination away from the death penalty on facts similar to those the evidence at trial was expected to show.

He did not state or imply a precise rating for Elliott, but referred to factors such as certain confusion she displayed on voir dire and what he said was a preference she expressed in the course of examination for life imprisonment without possibility of parole, and also his own belief, at the time of the strike, that there were more favorable prospective jurors about to be called into the jury box.

He rated Gonzalez a “three,” citing, among other things, comments she made on voir dire suggesting an inclination away from the death penalty on facts similar to those the evidence at trial was expected to show and also his own belief, at the time of the strike, that there were more favorable prospective jurors about to be called into the jury box. He apparently rated Harris a “five,” because, inter alia, some of his remarks on voir dire supported an inference that he was generally disposed against the death penalty.

He rated Klose a “three,” on grounds including substantial upset she exhibited on voir dire resulting from a recent death in her family and also his own belief, at the time of the strike, that there were more favorable prospective jurors about to be called into the jury box. He did not state or imply a precise rating for Soto, but referred to factors such as certain comments he made on voir dire suggesting he accepted the death penalty formally but not personally and also his own belief, at the time of the strike, that there might be more favorable prospective jurors called into the jury box.

After reviewing the record, as it pertained to the seven prospective jurors identified above and also to others, the superior court determined that the prosecutor made a showing of the absence of purposeful discrimination. Considering the peremptory challenges in question within the process of jury selection as a whole, it stated that he “was able to put forth neutral explanations related to each individual and related directly to this case, and . . .

I’m satisfied that these were neutral explanations and they’re not just sham excuses that were contrived to avoid admitting acts of group discrimination . . . .” On this basis, the superior court denied defendant’s Wheeler/Batson motion. Because it found no prohibited intent on the prosecutor’s part, it deemed it unnecessary to reach the question whether Puerto Ricans and/or Filipinos, as defendant suggested, came within the cognizable group of Latinos, or whether each or either of them constituted such a group in their own right.

Subsequently, in the midst of voir dire for the second panel of prospective jurors, after the prosecutor peremptorily challenged prospective juror Katrina George, identified as African-American, defendant made another motion, expressly under Wheeler and impliedly under Batson. Ross joined therein. Determining that defendant had not made a prima facie showing of the presence of purposeful discrimination, the superior court denied the motion. Acknowledging that he may have acted “somewhat prematurely],” defense counsel sought a denial of the motion without prejudice to renewal.

The superior court impliedly granted the request. Defendant did not renew the motion. In due course, the superior court had 15 jurors, 1 of whom was African-American, sworn to try the case. After instructions at the guilt phase, it had two of the then remaining fourteen jurors selected out of the panel at random to serve as alternates. The African-American juror remained on the panel. Defendant now contends that the superior court erred by denying his motions under Wheeler and Batson, An appellate court reviews a trial court’s ruling on a motion under Wheeler and/or Batson for substantial evidence. (People v.

Jackson (1992) 10 Cal.App.4th 13, 18-23 [12 Cal.Rptr.2d 541] [so holding as to a Wheeler motion]; People v. Tapia (1994) 25 Cal.App.4th 984, 1014 [30 Cal.Rptr.2d 851] [following Jackson]; cf. Hernandez v. New York, supra, 500 U.S. at pp. 364-369 [114 L.Ed.2d at pp. 408-412] (plur. opn. by Kennedy, J.) [concluding that tiie federal “clearly erroneous” standard—which is practically the same as the California substantial evidence test—is applicable on direct review of a state court decision involving a Batson motion]; id. at p. 372 [114 L.Ed.2d at p. 414] (conc. opn. of O’Connor, J.) [same]; but see People v.

Turner (1994) 8 Cal.4th 137, 164-172 [32 Cal.Rptr.2d 762, 878 P.2d 521] [seeming to assume that the standard for a ruling on a motion under Wheeler and/or Batson is abuse of discretion].) Although such a ruling broadly resolves a predominantly factual mixed law-fact question, as a general matter, at least, it narrowly depends on the answer to a purely factual question, viz., whether the prosecutor acted with the prohibited intent— which in turn typically depends on the answer to another purely factual question, viz., whether the prosecutor’s customary denial of such intent is true (see People v.

Jackson, supra, 10 Cal.App.4th at p. 20 [speaking of a Wheeler motion]; Hernandez v. New York, supra, 500 U.S. at p. 365 [114 L.Ed.2d at pp. 409-410] (plur. opn. by Kennedy, J.); id. at p. 372 [114 L.Ed.2d at p. 414] [speaking of a Batson motion] (conc. opn. of O’Connor, J.) [same]).

It follows that the determinations underlying a ruling of this sort, that is, whether the defendant bore his burden of a prima facie showing of the presence of purposeful discrimination and, if he succeeded, whether the prosecutor bore his consequent burden of a showing of its absence, are themselves examined for substantial evidence: they are each reducible to an answer to a purely factual question, as identified above. As to the superior court’s denial of defendant’s first motion under Wheeler and Batson, we find no error.

We shall assume that substantial evidence supports the superior court’s determination that defendant made a prima facie showing of the presence of purposeful discrimination in the prosecutor’s exercise of peremptory challenges against the seven prospective jurors in question. But we believe that substantial evidence also supports the superior court’s subsequent determination that the prosecutor made a showing of the absence of purposeful discrimination in this regard.

Looking to the prospective jurors themselves, including the seven identified above, and also to the timing of the prosecutor’s peremptory challenges, including the seven strikes at issue here, we cannot set aside the superior court’s finding. Our review of the record on appeal allows the following conclusion: The appearance of prohibited intent in this cause arose solely from the bare pattern of the strikes. It was dissipated by the reality of permissible intent.

In making the seven strikes, the prosecutor simply sought to obtain a jury that was as favorable to his position as possible, especially as to the death penalty, regardless of the group membership of individual jurors. We do not mean to assert that prohibited intent may not coexist with permissible intent. But, unless we indulge in speculation, we cannot say that it did so here. Defendant argues that the superior court’s determination of the absence of purposeful discrimination by the prosecutor fails at the threshold.

A trial court is required to assess whether the prosecutor stated adequate neutral reasons for the peremptory challenges in question—in other words, whether the reasons for the strikes were “explanation[s]” “connecting . . . specific [prospective] juror[s] to the facts of the case,” and were not mere “surrogate[s]” or “prox[ies]” for group membership. (U.S. v. Bishop (9th Cir. 1992) 959 F.2d 820, 826; see People v.

Hall (1983) 35 Cal.3d 161, 167 [197 Cal.Rptr. 71, 672 P.2d 854].) It is also required to assess whether he actually made those strikes for those reasons—in other words, whether the reasons for the strikes were “genuine.” (People v. Hall, supra, 35 Cal.3d at p. 167.) Defendant asserts that, although the superior court did indeed make an affirmative conclusion as to the former issue, it made no finding at all as to the latter. Not so.

By finding that the prosecutor’s “neutral explanations”— which “related to each individual and related directly to this case”—were “not just sham excuses that were contrived to avoid admitting acts of group discrimination,” the superior court necessarily found that they were in fact “genuine.” We review such a finding for substantial evidence: It is plainly the resolution of a pure question of fact. Because the prosecutor’s “neutral explanations” indeed “related to each individual and related directly to this case,” the superior court’s finding of genuineness was supported by substantial evidence.

To be sure, at least one of these “neutral explanations” may be without basis in the record on appeal—viz., that, on voir dire, Elliott expressed a preference for life imprisonment without possibility of parole. But this fact, if fact it be, does not undermine the “genuineness”—or the sufficiency—of the other “neutral explanations.” Defendant then argues that the superior court’s determination of the absence of purposeful discrimination by the prosecutor fails in its substance. He asserts, in effect, that its underlying analysis was not sufficiently “comparative.” That is not the case.

As noted, the superior court considered the seven peremptory challenges in question within the process of jury selection as a whole: it looked to the prospective jurors themselves and also to the timing of the prosecutor’s strikes. That is more than defendant does. He focuses on the former but ignores the latter. Neither do we find any error as to the superior court’s denial of defendant’s second motion under Wheeler and Batson.

We believe that substantial evidence supports the superior court’s determination that defendant did not make a prima facie showing of the presence of purposeful discrimination in the prosecutor’s exercise of a peremptory challenge against prospective juror George. All that he showed was that George was African-American. That, of course, is not enough. Below, defendant practically conceded as much: defense counsel acknowledged that he may have acted “somewhat prematurely].” Here, however, he argues to the contrary.

He asserts that the superior court’s determination that he had made a prima facie showing of the presence of purposeful discrimination by the prosecutor as to his first motion perdured. It did not. As stated, there is a presumption that a prosecutor uses his peremptory challenges in a constitutional manner. That presumption is suspended when the defendant makes a prima facie showing of the presence of purposeful discrimination. It is reinstated, however, when the prosecutor makes a showing of its absence. So was it here. Defendant was free to attempt to make another prima facie showing.

But he had to make it, and make it in fact. This he did not do. 7. In Limine Motion to Bar Evidence About Sandra S. Immediately prior to trial, the People moved the superior court, in limine, to preclude defendant and Ross from inquiring into certain areas in their questioning of Sandra S. in the presence of the jury, on grounds including that any testimony in response would not be relevant, i.e., would not have any tendency in reason to prove or disprove a disputed fact bearing on a material issue (Evid. Code, § 210).

The areas were these: (1) her general “sexual habits,” including prior misdemeanor convictions she had suffered for prostitution; (2) her general “drug use,” other than on the date of the charged rape and the date of her testimony; and (3) a rape complaint she had made against an unidentified man only after she had been approached by the police about an unrelated matter—she subsequently made a rape complaint against defendant only after she had been approached by the police about the theft of Glidewell’s Camaro.

The prosecutor represented that, on direct examination, he would have her admit that, as of the date of the charged rape, she was working as a prostitute. Defendant opposed the motion insofar as it sought to bar, as irrelevant, evidence of Sandra S.’s general “drug use.” He argued that such evidence might be relevant for impeachment if she should deny such use. He also opposed the motion insofar as it sought to bar, as irrelevant, evidence of her prior belated rape complaint.

He argued that such evidence would be relevant for impeachment because it assertedly revealed a “propensity to fabricate.” But on the prosecutor’s representation that she would admit working as a prostitute, he did not oppose the motion insofar as it sought to bar, as irrelevant, evidence of her general “sexual habits.” Indeed, when the superior court observed, “I don’t see any reason why” evidence of her prior misdemeanor prostitution convictions “would be admissible,” defense counsel agreed, “I’m not even going to argue that.” The statement and response were both apparently predicated on Evidence Code

section 787, which expressly renders evidence of misconduct generally inadmissible for impeachment, and impliedly does the same for evidence of prior misdemeanor convictions, or more precisely, evidence of the misconduct underlying such convictions. Ross did not oppose the motion in any respect, since she was not charged with the rape of Sandra S. The superior court proceeded to grant the motion. It found unpersuasive defendant’s argument that evidence of Sandra S.’s general “drug use” might be relevant for impeachment: It was speculative.

It also found unpersuasive his argument that evidence of her prior belated rape complaint would be relevant for impeachment: its premise was that the prior complaint was false; the support proffered therefor—viz., defense counsel’s speculation that the police might not have “really fe[lt] it was a crime” because they apparently “did not even write a formal report of the incident,” but “told her if she ever sees the guy again to let them know”—was insufficient. At the guilt phase, Sandra S. testified on the People’s behalf.

On direct examination, she admitted that, as of the date of the charged rape, she was working as a prostitute. On cross-examination, defendant inquired into her work as a prostitute, and did so openly and repeatedly. But he did not inquire into her general “sexual habits,” including her prior misdemeanor prostitution convictions; her general “drug use,” other than on the date of the charged rape and the date of her testimony; or her prior belated rape complaint. Forgoing any cross-examination at all, Ross made no inquiry whatsoever.

Defendant now contends that the superior court erred by granting the People’s motion to bar, as irrelevant, the introduction of evidence of Sandra S.’s prior misdemeanor prostitution convictions and her prior belated rape complaint. He argues that evidence on each of these matters would have been relevant for impeachment. In its first part, as to evidence of Sandra S.’s prior misdemeanor prostitution convictions, we reject the claim at the threshold. Defendant has not preserved the point for review in this respect.

He may not offer an argument here that such evidence would have been relevant for impeachment because he did not offer any to that effect below. (People v. Rowland (1992) 4 Cal.4th 238, 262, fn. 2 [14 Cal.Rptr.2d 377, 841 P.2d 897]; People v. Gordon (1990) 50 Cal.3d 1223, 1251-1252 [270 Cal.Rptr. 451, 792 P.2d 251].) We recognize that, at the time of the motion, we had yet to decide People v. Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr.2d 418, 841 P.2d 938], in which we held that

article I,

section 28, subdivision (

d) of the California Constitution supersedes Evidence Code

section 787 insofar as it impliedly renders evidence of prior misdemeanor convictions, or more precisely, evidence of the misconduct underlying such convictions, generally inadmissible for impeachment. But that is of no consequence. Defendant could surely have argued that it did. Indeed, on another point, he relied on People v. Adams (1988) 198 Cal.App.3d 10 [243 Cal.Rptr. 580], in which the court held that

article I,

section 28, subdivision (d), of the California Constitution supersedes Evidence Code

section 787 insofar as it expressly renders evidence of misconduct generally inadmissible for impeachment. If he had so argued, the superior court might well have been persuaded. To the extent that he attempts to excuse his omission by asserting that any act would have been futile, he fails: his assertion is mere conjecture. In its second part, as to evidence of Sandra S.’s prior belated rape complaint, we reject the claim on the merits. Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion. (See, e.g., People v.

Rowland, supra, 4 Cal.4th at p. 264.) Specifically, it scrutinizes a decision on a motion to bar the introduction of evidence as irrelevant for such abuse: it does so because it so examines the underlying determination whether the evidence is indeed irrelevant. (E.g., People v. Gordon, supra, 50 Cal.3d at p. 1239.) After review, we find no abuse of discretion. The superior court impliedly determined that any relevance that evidence of Sandra S.’s prior belated rape complaint might have for impeachment was premised on the falseness of the prior complaint. It was not unreasonable in this regard.

Indeed, under the reasoning of People v. Neely (1964) 228 Cal.App.2d 16, 18 [39 Cal.Rptr. 251, 20 A.L.R.3d 679], if her prior complaint was in fact true, it would have no relevance for impeachment whatsoever. The superior court also impliedly determined that the premise that the prior complaint was false was without sufficient support. In this regard too, it was not unreasonable. Defense counsel’s speculation that the police might not have “really fe[lt] it was a crime” could obviously have been deemed inadequate.

Defendant here asserts that Neely entitled him to inquire of Sandra S. in the presence of the jury in the hope of establishing the falseness of her prior complaint. It did not. The Neely court held only that the defendant therein should have been allowed to so inquire of a woman who “was a mentally ill person who had been” institutionalized “for several years,” and had “indicate[d] some uncertainty and confusion concerning the exact nature of her charges . . . .” (People v. Neely, supra, 228 Cal.App.2d at p. 19.) From all that appears, Sandra S. was not such a woman. 8.

In Limine Motion to Bar Evidence About Anthony Simpkins In the course of trial, the People moved the superior court, in limine, to preclude defendant and Ross from impeaching Sandra S.’s friend, Anthony Simpkins, in the presence of the jury with evidence of prior convictions, including one for the misdemeanor of petty theft. Neither defendant nor Ross opposed the motion. The superior court observed that “there does not seem to be any impeachable prior convictions.” Defense counsel expressly “agreed with that.” The superior court granted the motion.

Defendant requested permission to inquire in the jury’s presence whether Simpkins was then in custody. The superior court gave leave to do so. At the guilt phase, Simpkins testified on the People’s behalf. On direct examination, he admitted that he was then in custody following a prior, otherwise unidentified, misdemeanor conviction. On cross-examination by defendant, he was impeached with evidence of misconduct, but not such as underlay his prior petty theft misdemeanor conviction. On cross-examination by Ross, he was not impeached at all, testifying inter alia that he had never seen her previously.

Defendant now contends that the superior court erred by granting the People’s motion to bar impeachment of Simpkins with his prior petty theft misdemeanor conviction. We reject the claim at the threshold. Defendant has not preserved the point for review. He may not offer an argument in favor of impeachment because he did not offer any to that effect below. 9.

In Limine Motion to Bar Testimony by Leslie Colyer At the guilt phase, Charles Robinson testified on behalf of the People that, while in jail in Mississippi, defendant told him that “he had killed a police officer in California.” Allen Birkman was not a police officer, but rather a civilian identification technician for a police department. At defendant’s request, the superior court admonished the jury to the effect that Birkman was not a police officer, and that his homicide was the only one at issue.

In advance of the People calling Leslie Colyer to the witness stand, defendant moved the superior court, in limine, to preclude them from eliciting certain testimony as inadmissible hearsay—viz., that, in the course of a telephone conversation soon after the Birkman homicide, she told him that the victim was a police officer. Expressly determining that the testimony was not hearsay, it denied the motion. Later, Colyer testified in substance that, in the course of a telephone conversation soon after the Birkman homicide, she told defendant that the victim was a police officer.

In line with his motion to bar such testimony, defendant objected on the basis of hearsay; in line with its denial of that motion, the superior court overruled the objection. Colyer also testified that, earlier, the police had inquired of her as to his whereabouts. She then testified that they advised her they were seeking him in connection with a homicide. Defendant objected on the basis of hearsay; impliedly determining that the testimony was not hearsay, the superior court overruled the objection.

Defendant contends that the superior court erred by denying his motion to preclude, as inadmissible hearsay, Colyer’s testimony that she told him the victim of the homicide was a police officer and also by overruling his hearsay objection to her testimony that the police advised her they were seeking him in connection with a homicide. As stated, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.

Specifically, it scrutinizes a decision on a motion to bar the introduction of evidence as inadmissible hearsay for such abuse: it does so because it so examines the underlying determination whether the evidence was indeed hearsay. (People v. Rowland, supra, 4 Cal.4th at pp. 262-264.) It follows that it gives the same level of scrutiny for the same reason to the passing on a hearsay objection. We believe that the superior court did not abuse its discretion by denying defendant’s motion to preclude, as inadmissible hearsay, Colyer’s testimony that she told him the victim of the homicide was a police officer.

Hearsay is evidence of an out-of-court statement that is offered by its proponent to prove what it states. Colyer’s testimony was not such. Manifestly, it was not offered by the People to prove that Birkman was a police officer: he was not. Rather, it was offered by them to prove that, in admitting that he had killed a “police officer,” defendant effectively admitted he had killed Birkman, who he had been told was a police officer. The superior court was not unreasonable in expressly determining that the testimony was not hearsay. Indeed, it would have been unreasonable had it determined otherwise.

We also believe that the superior court did not abuse its discretion by overruling defendant’s hearsay objection to Colyer’s testimony that the police advised her they were seeking him in connection with a homicide. This testimony too was not hearsay. It was not offered by the People to prove the existence of a police investigation into his whereabouts. Rather, it was offered by them to prove the source of the information she obtained and then communicated to him—in order to prove that, in admitting he had killed a “police officer,” he effectively admitted he had killed Birkman.

The superior court was not unreasonable in impliedly determining that the testimony was not hearsay. 10. Objection to Testimony About Photographic Display At the guilt phase, in their case-in-chief, the People called Greta Slatten to the witness stand. On direct examination, she testified that she was robbed, and identified defendant as the perpetrator. On cross-examination by defendant, who inquired into the reliability of the identification, she stated in substance as follows: Not long after the robbery, she saw a photograph, which proved to be defendant’s, accompanying an

article in a local newspaper about the homicide of Allen Birkman; she believed it depicted the robber; Detective Darrell Edwards of the Sacramento Sheriff’s Department came to her home; she showed him the newspaper photograph and told him her belief; he then showed her a display of photographs—which she described on defendant’s inquiry; she selected one, which turned out to be defendant’s; she thought the newspaper and display photographs of defendant might have derived from the same source. In his case, defendant called Detective Edwards.

On direct examination, Edwards testified that he went to Slatten’s home to show her the photographic display in order to determine whether she could identify defendant as the robber; before he could show her the display photographs, she showed him the newspaper photograph and said she believed it depicted the robber; he then showed her the display photographs—which he then described on defendant’s inquiry; she selected defendant’s; the newspaper and display photographs of defendant did in fact derive from the same source. Defendant then asked Detective Edwards how he prepared the photographic display.

The People objected that any response would be irrelevant. Determining that the appearance of the display might have some tendency in reason to prove or disprove a disputed fact bearing on a material issue, viz., the identity of the robber, but that its genesis would not, the superior court sustained the objection. Edwards did not respond. Defendant apparently expressed an intention to question Robert Shomer, Ph.D., a psychologist, as to how one should prepare a photographic display. The superior court stated that it would sustain an objection that any response would be irrelevant for the same reason.

Defendant called Dr. Shomer. On direct examination, Dr. Shomer gave expert testimony on the suggestiveness of photographic displays in general and also on the suggestiveness of the photographic display in this cause in particular. More broadly, he gave similar testimony on the unreliability of identification by eyewitnesses in general and also on the unreliability of the identification by Slatten in particular.

Defendant now contends that the superior court erred by sustaining the People’s objection that any response by Detective Edwards as to how he prepared the photographic display would be irrelevant, and also by stating that it would sustain a similar objection concerning any response by Dr. Shomer as to how one should prepare such a display. An appellate court reviews a trial court’s passing on an objection based on the irrelevance of evidence for abuse of discretion. That is because, as we have stated, it so scrutinizes the underlying determination whether the evidence is indeed irrelevant.

We find no abuse of discretion here. As to both Detective Edwards and Dr. Shomer, the superior court could have determined, not at all unreasonably, that the genesis of the photographic

[…]