THE PEOPLE, Plaintiff and Respondent, v. BARRY GLENN WILLIAMS, Defendant and Appellant, 16 Cal. 4th 153

Opinion WERDEGAR, J. Barry Glenn Williams (defendant) appeals the first degree murder conviction and sentence of death he received in Los Angeles County Superior Court in connection with the shooting death of Jerome Dunn in 1982. The sole special circumstance found true was that defendant had previously been convicted of the June 16, 1981, murder of Donald Billingsley. We affirm the judgment in its entirety, finding no prejudicial error affecting either the guilt or penalty trials. I.

Facts The charges against defendant arose out of two incidents: the shooting deaths of Donald Billingsley in June 1981 and of Jerome Dunn in March 1982. The People initially charged defendant with Billingsley’s murder and with attempted murder of others injured in the Billingsley incident. That information was dismissed for insufficiency of the evidence presented at the preliminary hearing. The People then filed a new complaint, charging defendant, inter alia, with the murder of Jerome Dunn and the murder of Donald Billingsley, and alleging multiple murder special circumstances as to each.

Defendant moved to sever the charges. We issued a peremptory writ of mandate directing the trial court to grant defendant’s motion to sever. (Williams v. Superior Court (1984) 36 Cal.3d 441, 446, 454 [204 Cal.Rptr. 700, 683 P.2d 699].) Accordingly, charges related to Jerome Dunn’s death were severed from those based on Donald Billingsley’s death. Following a jury trial on the Billingsley charges, defendant was found guilty of one count of first degree murder (Pen. Code, § 187), two counts of attempted murder (§§ 187, 664) and one count of conspiracy to commit murder (§ 182).

Defendant was sentenced to 34 years to life in state prison. The Court of Appeal affirmed. The trial court denied defendant’s motion to continue the trial in this matter until final resolution of the appeal of his conviction on the 1981 offenses. Accordingly, trial commenced on October 16, 1985. The jury in this case found defendant guilty of the first degree murder of Jerome Dunn (§ 187) and found true allegations that a principal was armed with a firearm (§ 12022, subd. (a)) and that defendant personally used a firearm in the commission of the offense (§§ 12022.5, 1203.06, subd. (a)(1)).

Subsequently, defendant admitted a prior-murder special-circumstance allegation. (§ 190.2, subd. (a)(2).) After trial on penalty, on July 11, 1986, defendant was sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) A. Guilt Trial The prosecution’s theory was one of gang violence, namely, that defendant, a “Blood,” killed Jerome Dunn for being a “Crip.” Defendant proffered an alibi. 1. The Murder of Jerome Dunn In 1982, defendant Barry Williams, also known as “Big Time,” was a member of the 89th Street Family Bloods, a street gang in South Central Los Angeles.

At that time, the 89th Street Family Bloods associated with other Bloods gangs in Los Angeles against rival Crips gangs, especially the Avalon Garden Crips. The Crips wore blue and the Bloods wore red. On the morning of March 25, 1982, defendant led a meeting of Blood gang members. The purpose of the meeting was to “protect” the neighborhood from various Crip gangs. Some present had weapons; defendant had a .38-caliber pistol. It specifically was stated at the meeting that anyone present who wanted to go out and shoot rival gang members could go out and shoot.

In the afternoon of the same day, Marcellus Gray (who had died by the time of trial) and a friend, Kathleen Gurley, drove, in Gray’s blue van, to the Food Bam near the comer of Rosecrans and Central in Los Angeles. Around 6:30 p.m., Gurley testified, Gray came running into the market (where Gurley was shopping) and agitatedly recounted that his van had been stolen from him, at gunpoint, by two African-American men, while he was in the parking lot waiting for Gurley. Gray and Gurley reported the theft to police, then returned to their homes.

Shortly after the van was stolen, it was driven towards the intersection of 88th Place and McKinley Avenue. When the van arrived at the intersection, Kenneth Hayes, 22, and the victim, Jerome Dunn (also known as “Bone”), were riding by on their bicycles. Both Hayes and Dunn associated with the Grape Street Crips gang. The two were on their way to see their girlfriends. Hayes, who had recently been released from Soledad prison, was wearing a blue jacket, blue corduroy pants and blue hair rollers. Dunn was wearing beige corduroy pants, a blue windbreaker, white shoes and a blue cap.

According to Officer Johnson, Dunn was dressed the way a typical Crip gang member would dress in that area, although a person could be dressed that way and not be a Crip. At that time, Patricia Lewis (who lived in the neighborhood) was a passenger in a station wagon that was stopped, northbound on McKinley, at the stop sign at 88th Place. Jean Rivers (who did not testify at the trial) was driving. The street lights were on; it was twilight and misty. Lewis testified she saw a van at the intersection of 88th and McKinley; she identified a photograph of Marcellus Gray’s van as depicting the one she had seen.

Lewis also testified that two young men rode by on bicycles, one following the other, and that the van then slammed on its brakes and turned so it could follow the first bicyclist. According to Lewis, the station wagon in which she was riding backed up to allow the van to proceed through the intersection, and, when the van paused momentarily at the northeast comer of 88th Place, she was able to see who was inside. When the van started to turn, she looked directly—for more than 20 seconds—into the face of the driver of the van, whom she identified as defendant.

She noticed a shiny object in the upper right side of defendant’s mouth. She also noticed a passenger was riding alongside defendant and the occupants of the van were laughing. Dunn crossed McKinley Avenue, while Hayes followed at some distance. As Dunn rode his bicycle past the van, Patricia Lewis heard the driver of the van say, “Let’s go f—him up.” Hayes and Lewis each observed that the van then drove west on 88th Place and stopped near where Dunn had stopped on his bicycle. Someone in the van spoke with Dunn. As Hayes rode closer on his bicycle, he heard chattering and laughter inside the van.

According to Hayes, Dunn shook his head in response to something said to him by an occupant of the van. Hayes came up behind the van on its left side, noticing that the curtains on its back window were closed. He stopped within three or four feet of the driver’s door and could see the driver’s hands on the steering wheel. Hayes testified that a Black person’s hand and right arm then came out of the van driver’s window, holding a handgun, at which time he could no longer see the driver’s hands on the steering wheel. The muzzle of the gun was four or five inches from Dunn’s head.

Hayes watched as the shooter fired about four shots at Dunn, who fell from his bicycle after the first shot. Dunn jumped and blood came from his mouth and nose. In all, the shooter fired five .38-caliber bullets into Dunn’s head and upper body, killing him. The shooting occurred at approximately 6:30 p.m. Patricia Lewis testified that, as she watched the van, she leaned over and rolled down the station wagon’s driver’s side window. According to Lewis, she did so because she was “nosey.” Defendant was wearing a dark jacket.

Lewis saw defendant’s hand come out through the driver’s side window of the van, holding a gun. At that point, Lewis testified, Rivers drove the station wagon forward across 88th Place and Lewis heard three or four gunshots. Rivers then drove to Lewis’s home, nearby on 87th Place. As the two women were speaking before Lewis entered her house, Lewis looked up and saw the van again, speeding back along Wadsworth Avenue, heading south, towards 88th Place. At this time, Lewis saw “Bongo” and Mark Williams in the van with defendant.

Less than an hour later, police recovered Marcellus Gray’s van, approximately four blocks from the scene of the shooting. Kenneth Hayes identified it as the van that was used in Jerome Dunn’s killing. In April 1982, after Patricia Lewis selected defendant’s photograph from a photographic showup, defendant was arrested for the murder of Jerome Dunn. On several occasions before trial, defendant acknowledged killing Dunn.

First, according to John Gardner (a former Blood gang member), about 9 o’clock on the evening Dunn was shot, defendant told Gardner that he (defendant) “shot, took out—he said say bloody shot and took out of the box some fool A.G. quarters” who was “a gangster dude with flew clothes on.” (In gang parlance, this meant that he had shot dead a gang member who was wearing blue clothing.) Gardner testified defendant repeatedly stated it was “Silky” who had been killed, but that, walking off, he muttered under his breath the victim was actually “Bone” (i.e., Dunn).

Defendant also said to Gardner that the police were looking for him and he intended to “go over on the westside and lay low for a while.” Second, about a week and a half after Dunn’s shooting, defendant spoke again with Gardner, at a house frequented by gang members. According to Gardner, defendant and he discussed the incidents of March 25, and defendant stated that he “took this fool out of the box, you know, from A.G.

Crips.” Third, Arthur Cox testified that, while he and defendant were in Los Angeles County jail together, defendant in two conversations told Cox that fellow Blood gang member Curtis Thomas, who was in the van with defendant when Jerome Dunn was killed, actually shot Dunn, but that it was he, defendant, who told Curtis Thomas to shoot.

According to Cox, defendant also said that all of the Crips in the jail were trying to “get” him for killing “Bones.” Subsequent to his arrest, defendant attempted to intimidate prosecution witness Patricia Lewis by arranging for Mark Williams (no relation to defendant), a fellow gang member (also known as “Snoop Dog”), to shoot up Lewis’s home while she and her family were inside. The shooting of Lewis’s house occurred on an evening in January 1983. Lewis was home with her husband and grandson. Forty-five or fifty shots were discharged into the house, possibly by more than one shooter.

Lewis, holding the baby, crawled to safety in a back bedroom. Nothing like this had ever happened to Lewis prior to her witnessing Jerome Dunn’s murder. As a consequence of the shooting of her house and various threatening phone calls she had received, Lewis became afraid for her life and testified falsely at the preliminary hearing that she did not know whose arm had held the gun that was used to shoot Dunn. Kenneth Simmons, a former 89th Street Family Bloods gang member, at first testified he did not remember having a conversation with Mark Williams.

Later, Simmons testified that Mark Williams had told him defendant wanted Williams to scare “the lady on 87th Street who was going to court on him.” After refreshing his recollection by listening to a tape of a conversation he had had with Officer Michael Mejia, Simmons provided more detail.

Simmons testified he had a conversation with Mark Williams on January 7, 1983, while the two of them were in an alley “getting high.” Williams told Simmons that Williams and others had gone to “take care of some business” involving “a witness” for defendant, but it “wasn’t done right.” Simmons specifically testified that Williams told him it was defendant who wanted this “business” taken care of and that the witness involved lived on 87th Street. Mark Williams denied shooting at Patricia Lewis’s house, and denied having any conversation with Kenneth Simmons regarding any such shooting.

Williams admitted, however, that he was a member of the 89th Street Family Bloods at the time Dunn was shot, as well as at the time Lewis’s house was shot up, and that he was still a Blood at the time of trial. Williams also admitted he knew defendant and knew that Kenneth Simmons considered himself to be a member of the 89th Street Family Bloods. 2. Defense Case Defendant did not testify at the guilt phase of this trial, but, through testimony of other witnesses, proffered an alibi. Private investigator Edward J. Sanchez testified he had interviewed Jeanette Houston for the defense in August 1982.

Houston told him that defendant and she were boyfriend and girlfriend, and they had spent the night of March 25, 1982, together, first at her mother’s house on South Compton Avenue and then at defendant’s aunt’s house on 88th Place. Houston told him that when she and defendant arrived that night at defendant’s aunt’s residence, his aunt, Lena Bridges, was preparing to go to a cosmetics sales party. Defendant and Houston stayed together that night in one of the bedrooms of the Bridges house.

Jeanette Houston (née Jeanette Renee King), the mother of defendant’s five-year-old child, testified that her relationship with defendant ended in October 1981, but that she still saw defendant after that. She further testified she did not recall seeing defendant on March 25, 1982 (the date Dunn was killed), but did remember hearing about a shooting that occurred that day. Houston also testified she and defendant were together on the night after the shooting, but not on the night of the shooting.

Defendant’s aunt, Lena Bridges, testified that defendant and Jeanette Houston were in her home together on the evening of March 25, 1982. She saw defendant about 5:30 p.m. or 6 p.m.; he accompanied Houston into a bedroom. Between 6 p.m. and 6:30 p.m., Bridges and a neighbor were standing in the doorway talking, when they heard shots. About 6:30 p.m., defendant came out of the bedroom to take a telephone call and subsequently reentered the bedroom. The last time Bridges saw defendant and Houston was about 7:30 p.m. or 7:45 p.m., as she was preparing to leave to attend a cosmetics sales party.

Exhibit M was a receipt, dated March 25, 1982, showing cosmetics were ordered by Bridges. Defendant also challenged the perceptions and recollections of the prosecution’s eyewitnesses, Patricia Lewis and Kenneth Hayes. Defendant presented Dr. Shomer, a psychologist, as an expert witness on eyewitness identification. Dr. Shomer discussed various factors affecting human perception. In response to defense hypotheticals analogous to Patricia Lewis’s identification of defendant, Dr. Shomer opined that such factors might contribute to misidentification. Defendant also presented Dr.

Golden, a forensic dentist, who testified that approximately one-eighth of the African-American male teenagers he had examined professionally while working at a dentistry clinic had a stainless steel crown in the front of the mouth, like defendant. Kenneth Hayes testified that, as he passed by the station wagon that had been at the intersection near where Jerome Dunn was killed, he had to steer, his bicycle around it; as he did so, he noticed that a person was sitting on the passenger side of the front seat and that the windows were foggy and rolled up.

Joe Lewis, husband of witness Patricia Lewis, testified that defendant had been, for four or five years, a member of a neighborhood youth “cadet corps” he had organized. Defendant had been in the Lewis’s backyard every day during that period and Mrs. Lewis was sometimes there. Mr. Lewis maintained a photo album containing pictures of the cadets, and Mrs. Lewis, he was sure, had seen the album. Mr. Lewis had shown the album to investigating police in connection with this case. Officer Mejia testified the album contained defendant’s picture.

Officer Jerry Jones testified that, on the night Dunn was shot, Kenneth Hayes had stated to him (in contrast to his testimony at trial) that the van driver’s hands were on the steering wheel and it was the passenger in the van who had extended his arm holding a gun. Defendant questioned the motives of the prosecution’s informant witnesses, Arthur Cox and John Gardner: Officer Mejia testified that Arthur Cox had sought to “cut a deal for information” respecting this case.

Mejia also acknowledged Cox had testified that defendant had told him (Cox) that Curtis Thomas had actually shot Dunn, and that no criminal charges were being brought against Curtis Thomas. Ernest Cox testified that, in 1982, when he was housed in the same Los Angeles County jail module as his brother, Arthur Cox, he saw Arthur reading defendant’s preliminary hearing transcript.

He further testified Arthur had told him that he (Arthur) could receive a sentence of probation, instead of a prison term, on a robbery charge pending against him, if he could provide information that would help the district attorney convict defendant (in this case).

Ernest testified Arthur told him that he had only pretended, when speaking with Deputy District Attorney Jacobs, to know something about defendant’s case and so would have to “find something.” On cross-examination, the prosecution suggested Ernest was testifying against his brother to avoid gang retaliation in Folsom prison (where he was serving a life sentence), but Ernest denied the allegation. In cross-examining Gardner, defense counsel suggested it was Gardner who had mentioned to defendant that it was “Bone” (i.e., Dunn) who had been killed, rather than defendant who had mentioned that fact to Gardner.

Gardner insisted it had been defendant who had “mumbled” something that “sounded like Bones.” Defense counsel also inquired into Gardner’s motivation for testifying against defendant. Gardner testified the only thing he received in return for his testimony was relocation for himself and his mother. Later, Gardner acknowledged that, when he pled guilty to a charge of possession for sale of marijuana, he received a sentence of only eight days in jail. Defendant also attempted to cast doubt on the thoroughness of the investigation conducted into the available fingerprint evidence. B. Penalty Trial 1.

Prosecution Evidence a. Cakewalk shooting Karry Island, Mary Nixon, Barbara Nixon and Deontray Turner testified that, on the morning of July 19, 1980, defendant and two other Blood gang members fired shotguns at a crowded church carnival or “cakewalk,” being attended by rival gang members, between Mary and 89th Streets in Los Angeles. Thelma Turner and Michael Hardwick corroborated their testimony. Several adults and a child were injured in the shooting. Two shotguns were used. Defendant was the leader of the attack and the one who fired the first shot.

Defendant yelled, “This is Neighborhood Family Blood 89th Street.” Criminal charges were filed in connection with the cakewalk shooting, but the case, ultimately, was not prosecuted. b. The Green Meadow Park shooting Arthur Cox testified that, in June 1981, he attended a meeting at Margot Bridges’s house attended by seven or eight members of the 89th Street Family Bloods. According to Cox, defendant and Junior Bridges led the meeting. The purpose of the meeting was to plan a shooting of the members of the Green Meadow Park Boys gang and the Avalon Garden Crips gang (if they were present), at Green Meadow Park.

Shotguns and handguns were laid out on the floor at the meeting; defendant picked up a .357-caliber handgun and said he would use that. Defendant did not mention wanting to shoot any particular individual. The people at the meeting were just supposed to be there and shoot whoever was at the park. For transport, they were going to use a blue Cadillac belonging to a fellow gang member known as “Hang Bang.” The guns were stored at Margot Bridges’s house. Lea Stoneham, who worked as a pool attendant at Green Meadow Park, had known defendant since elementary school.

She testified that, at approximately 9:20 p.m. on the night of June 16, 1981, she saw a blue Cadillac, which she recognized from the neighborhood as belonging to Michael Wilson (whom she also knew as “Bang”), approach the area of an outdoor stage at the park. Five or ten minutes later, Stoneham saw defendant and one other person walk towards the stage. Carol Freeman testified that, at Green Meadow Park that night, she was among a group of about 10 people gathered about an outdoor stage. They were just laughing and talking; no one had any weapons.

Lea Stoneham testified she saw defendant and one other person shooting at this group of people from behind nearby bushes. According to Stoneham, defendant fired in the direction of the stage with a handgun he carefully aimed through a gap in the bushes. Carol Freeman and Anthony Debose sustained shooting injuries. Donald Billingsley was killed by a bullet that defendant’s weapon was capable of firing. Arthur Cox testified he went back to Margot Bridges’s house on the morning after Donald Billingsley had been shot.

Defendant and others were there, according to Cox, discussing what had happened at Green Meadow Park on the previous night. Defendant said he did not shoot the person who had died from a shotgun wound, as he had been carrying a .357-caliber weapon. Junior Bridges said that a girl had been shot in the hand. c. Possession of weapon while in jail The prosecution entered into evidence a certified copy of defendant’s plea of guilty to a charge of having possessed a weapon, a homemade “shank,” while he was in Los Angeles County jail awaiting trial. 2.

Defense Evidence Defendant’s aunt, Lena Bridges, testified that defendant’s mother had abandoned him when he was three days old, and that she and defendant’s grandmother had raised him. Various residents of defendant’s neighborhood, who had known defendant in his youth, testified to his good character: that he was religious, obedient and respectful, and that he did not deserve the death penalty. According to these accounts, when young, defendant participated in church activities, including the choir. He tried very hard to help his grandmother when she was sick. He also worked as a security guard.

Dawn Williams, 20, was defendant’s wife. They were married, in jail, while defendant was in custody. Mrs. Williams had known defendant for more than five years, but was not engaged to him before he was arrested. She married defendant because she was in love with him and because she liked the way he understands people and because she felt him to be warmhearted. Mrs. Williams did not feel that defendant should receive the death penalty. Joe Lewis formed a community youth group called the Southeast Cadet Corps in 1967, after the Watts riots.

The cadet corps was a quasi-military group, but no weaponry was taught; only discipline and control were taught. The members drilled five days a week. Defendant was a member of the cadet corps until he became a gang member. He was one of the better boys in the group, working his way up from “private” to become a “second lieutenant.” In order to be promoted in the cadet corps, a cadet had to have letters from teachers about how well he was doing in school and good recommendations from people in the neighborhood; defendant achieved these prerequisites to promotion.

Jeanette Houston (née King) was the mother of defendant’s son, Damien, who was five years old at the time of trial. When she was eight months’ pregnant with Damien, Houston was shot by a Crip gang member. At that time, defendant had tried to grab her and protect her, even though he had been shot himself. Mrs. Bridges testified that, prior to his arrest, defendant often visited his son and acted as a father to him. After he was arrested, Mrs. Bridges testified, she would frequently take Damien to the jail to visit with defendant. Damien Williams testified that he loved his father.

Defendant took the stand for the first time at the end of the penalty phase. He testified the weapon he had possessed in jail was a hard wire with cloth wrapped around it that he had bought because he had been placed in a Crips

section of the jail and needed a weapon in order to protect himself. Defendant testified he was not the shooter at the cakewalk shooting incident, although he could not recall where he had been on the day that incident occurred. He had gone to the police station voluntarily when he learned the police were looking for him in connection with the cakewalk shooting, spending about 12 days in custody.

Defendant testified he had ongoing disputes with Karry Island, the principal witness against him in connection with the cakewalk shooting, and that these disputes had their root in Island’s having wanted defendant and his friends to join the Crips, while defendant had preferred to become a Blood. Defendant testified that he dropped out of the Bloods when his son was bom. He worked to support his son and often visited him or picked him up to spend time with him at defendant’s grandmother’s house.

When prosecutors confronted defendant with items recently taken from his house that the prosecution argued indicated he maintained his gang membership after 1980, defendant explained the items were relics of his past gang associations. Defense clinical psychologist Margaret Bennett testified that she had done a psychological evaluation of defendant and that her tests and interviews were not consistent with the charges against him.

She testified, specifically, that defendant did not seem to have the “personality structures” or “levels of violence or anger” to indicate he would be capable of the murders with which he was charged. The only explanation for defendant’s behavior she could offer was defendant’s long-term association with gangs. Although she acknowledged that gang involvement in prison naturally enhanced the risk that an inmate would be violent, Dr. Bennett did not anticipate that defendant would be violent or hostile in prison. II. Guilt Phase Issues Defendant raises a number of claims attacking the judgment as to guilt. A.

Peremptory Challenge of Two African-American Potential Jurors Defendant, the victim and all the percipient witnesses involved in this matter were African-Americans. After the prosecutor had exercised peremptory challenges to remove six African-American prospective jurors, defendant moved to quash the jury panel under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]. The prosecutor had earlier accepted the jury with two African-Americans on it, and three African-Americans had been seated when the defense Wheeler motion was made.

At that point, the defense had also excused one African-American. After inquiring into the prosecutor’s specific reasons for his peremptory challenges of African-American prospective jurors, the trial court denied defendant’s Wheeler motion. Defendant argues reversal of his conviction is required because the prosecutor’s peremptory challenges of African-American potential jurors Frederick Bussey and Mary Smith violated his state and federal constitutional rights to trial by a jury drawn from a representative cross-section of the community. According to defendant, the trial court erred under both People v.

Wheeler, supra, 22 Cal.3d 258, and Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69], in permitting the prosecutor to excuse Bussey and Smith, without adequate explanation, after defendant had presented a prima facie case of discrimination based on presumed group bias. A party’s use of peremptory challenges is presumed to be valid. The presumption is rebutted if the other party establishes a prima facie case that jurors were challenged solely on the basis of their presumed group bias. (People v.

Wheeler, supra, 22 Cal.3d at pp. 278-281.) To establish a prima facie case, a party “should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.

Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (Id. at p. 280, fn. omitted.) Although the court did not expressly rule that defendant had made a prima facie case under Wheeler, the record supports a conclusion that the trial court so found. Once a prima facie case has been shown, the burden shifts to the other party to provide race-neutral explanations for each of the disputed peremptory challenges. (People v. Wheeler, supra, 22 Cal.3d at pp. 280-282; Batson v.

Kentucky, supra, 476 U.S. at pp. 96-98 [106 S.Ct. at pp. 1722-1724].) If the court finds, as to any of the challenges, that the burden of justification is not sustained, the presumption of validity is rebutted. (People v. Wheeler, supra, 22 Cal.3d at pp. 281-282.) Defendant does not quarrel with the specific reasons the prosecutor gave for peremptorily challenging four of the African-Americans excused from service on defendant’s jury. Defendant does object, however, to the reasons the prosecutor gave for his peremptory challenges of African-American prospective jurors Smith and Bussey. 1.

Prospective Juror Smith The prosecutor stated he had excused prospective juror Smith “in error.” More specifically, the prosecutor stated: “She should be on this jury. I got her confused. She’s a police officer, and I made a mistake. I should have kept her on. Let me show you what I have here. I have an eight to nine for guilt. Eight to nine for overall. I didn’t pull this one out beforehand, and I thought we were going this way and . ...” In response to further questioning from the court, the prosecutor stated he wanted Smith “on the jury.

I will be glad to pull my other statements as to the other blacks on the panel, and her guilt rating and death rating are higher than theirs. That was a flat out mistake." The prosecutor offered to “call her back and put her on the panel—if [the] defense wants to stipulate to this . . . .” Defense counsel stated: “I don’t think it is an issue at this time.” Defendant argues the prosecutor’s claim his challenge of potential juror Smith was simply a “mistake" did not constitute a sufficient rebuttal of the prima facie case of presumed racial bias the trial court impliedly found.

Defendant points out that, in Wheeler, we stated that in order “to sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses—i.e., for reasons of specific bias. . . .” (People v. Wheeler, supra, 22 Cal.3d at p. 282; see also People v. Johnson (1989) 47 Cal.3d 1194, 1216 [255 Cal.Rptr. 569, 767 P.2d 1047].) In People v.

Johnson we contrasted Wheeler's holding that peremptory challenges “are permissible so long as they are based on specific bias,” with the rule of Batson v. Kentucky which “does not use the term ‘specific bias’ [but] permits the challenges so long as they may be justified by a ‘neutral explanation related to the particular case to be tried.’ ” (People v. Johnson, supra, 47 Cal.3d 1194, 1216, citing Batson v.

Kentucky, supra, 476 U.S. at p. 98 [106 S.Ct. at pp. 1723-1724].) Defendant argues the prosecutor’s proffered reason for excusing prospective juror Smith—“a mistake”—amounts to no reason at all, hence neither a reason “on grounds of specific bias” (Wheeler, supra, 22 Cal.3d at p. 277) nor one “related to the particular case to be tried” (Batson, supra, 476 U.S. at p. 98 [106 S.Ct. at p. 1724]). We disagree. First, a “mistake” is, at the very least, a “reason,” that is, a coherent explanation for the peremptory challenge. It is self-evidently possible for counsel to err when exercising peremptory challenges.

Second, a genuine “mistake” is a race-neutral reason. Faulty memory, clerical errors, and similar conditions that might engender a “mistake” of the type the prosecutor proffered to explain his peremptory challenge are not necessarily associated with impermissible reliance on presumed group bias. (People v. Davis (1987) 189 Cal.App.3d 1177, 1194 [234 Cal.Rptr. 859], overruled on other grounds by People v. Snow (1987) 44 Cal.3d 216 [242 Cal.Rptr. 477, 746 P.2d 452].) Third, a “mistake” may be a reason based on “specific bias” (People v.

Wheeler, supra, 22 Cal.3d at p. 277) where, as appears to have been the case here, the prosecutor’s error is one of erroneously believing, owing to clerical error, that a prospective juror had earlier been evaluated as specifically biased, when in fact she had not. Finally, a “mistake” is a reason “related to the particular case to be tried” (Batson v. Kentucky, supra, 476 U.S. at p. 98 [106 S.Ct. at p. 1724]) to the extent the possibility that genuine errors of this sort will be made exists in every case.

We realize the possibility always exists that counsel called upon to explain a questionable peremptory challenge will take refuge in a disingenuous claim the challenge was mistakenly made. In such a case, “we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (People v.

Wheeler, supra, 22 Cal.3d at p. 282.) We and the United States Supreme Court give great deference to the trial court’s determination that the use of peremptory challenges was not for an improper or class bias purpose. (People v. Johnson, supra, 47 Cal.3d at p. 1221; Batson v. Kentucky, supra, 476 U.S. at p. 98, fn. 21 [106 S.Ct. at p. 1724].) Defendant suggests the trial court never even reached the analytic stage of making the “sincere and reasoned attempt to evaluate the prosecutor’s explanation” (People v.

Hall (1983) 35 Cal.3d 161, 167-168 [197 Cal.Rptr. 71, 672 P.2d 854]) we expect from the trial court as the price of our deference. The record refutes the suggestion.

After the prosecutor indicated he had “made a mistake” in excusing prospective juror Smith, the court requested clarification: “so you excused her in error?” When the prosecutor responded affirmatively, the court pressed for additional clarification: “you wanted her to—.” Only after the prosecutor had offered “to pull my other statements as to the other blacks” and show that “her guilt rating and death rating are higher than theirs,” did the court indicate it would “accept these reasons at this time.” In short, nothing in the record suggests the trial court failed to make the requisite sincere and reasoned determination regarding the genuineness of the prosecutor’s explanation for challenging prospective juror Smith.

Though in making its determination a trial court is not necessarily required affirmatively to make further inquiry of the prosecutor concerning his proffered explanations for disputed peremptory challenges (People v. Johnson, supra, 47 Cal.3d at p. 1222), the trial court in this instance, where the proffered explanation was of a type particularly susceptible to abuse by overzealous prosecutors, wisely engaged in such inquiry. The trial judge’s findings in such a context, largely turning on evaluations of credibility, are entitled to great deference. (People v. Johnson, supra, 47 Cal.3d at p. 1221; Batson v.

Kentucky, supra, 476 U.S. at p. 98, fn. 21 [106 S.Ct. at p. 1724].) 2. Prospective Juror Bussey The prosecutor stated as his basis for excusing juror Bussey: “[H]e had a high death rating, but he had a low guilt rating because of his Blood association at Momingside High School.

I have him down as a six to seven on guilt rating and seven is the breaking point for me.” The prosecutor also stated: “I have an eight to nine for a death rating on him.” Defendant concedes the prosecutor’s proffered explanation for excusing prospective juror Bussey is facially neutral as to race, but argues such an explanation functions, in practice, as a proxy for race. Defendant cites U.S. v.

Bishop (9th Cir. 1992) 959 F.2d 820, 827-828 as illustrating the principle that a potential juror’s place of residence “often acts as an ethnic badge” and suggests we should find the prosecutor’s proffered explanation invalid in light of the fact a person’s place of residence often determines the high school he attends. Of course, Bishop, supra, 959 F.2d 820, is not controlling. Decisions of lower federal courts interpreting federal law are not binding on state courts. (People v. Zapien (1993) 4 Cal.4th 929, 989 [17 Cal.Rptr.2d 122, 846 P.2d 704].) More importantly, Bishop is not apposite.

There, a prosecutor peremptorily challenged African-American jurors who “lived in a predominantly low-income, black neighborhood and therefore were likely to believe the police ‘pick on black people.’ ” (U.S. v. Bishop, supra, 959 F.2d at p. 821, quoting the prosecutor.) The United States Court of Appeals for the Ninth Circuit invalidated the peremptory challenge as based on stereotypical presumed group bias, but only because there was no “nexus between the jurors’ characteristic”—i.e., that they lived in a poor, predominantly African-American city—“and their possible approach to the specific trial.” (U.S. v.

Bishop, supra, 959 F.2d at p. 825.) The court elaborated thus: “This is not to say that residence never can constitute a legitimate reason for excluding a juror, even after a prima facie showing of intentional discrimination has been made. . . . What matters is not whether but how residence is used. Where residence is utilized as a link connecting a specific juror to the facts of the case, a prosecutor’s explanation based on residence could rebut the prima facie showing.” (U.S. v.

Bishop, supra, 959 F.2d at p. 826.) The prosecutor here used residence as a link connecting prospective juror Bussey to the facts of defendant’s case. Referring to evidence that “defendant is a Blood gang member,” the prosecutor stated he suspected Bussey would be “sympathetic toward Blood gang members” owing to his having attended Momingside High in “a Blood gang area.” Indeed, on voir dire, Bussey confirmed he had gone to school with gang members, that the Bloods gang was prevalent at Momingside High School and that “the whole school would get together and run [the Crips] out” if they came to Momingside High.

The “law recognizes that a peremptory challenge may be based on a broad spectmm of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative.” (People v.

Wheeler, supra, 22 Cal.3d at p. 275.) Despite the fact Bussey also stated on voir dire that he did not become involved with gangs at high school and defendant’s being a Blood “wouldn’t mean a thing” to him, the prosecutor may have concluded the likelihood Bussey would evince sympathy for defendant owing to his high school familiarity with Bloods gang members was sufficient to warrant use of a peremptory challenge. The trial court accepted the prosecutor’s reason; we see no error in its having done so. Thus, we conclude the trial court’s denial of defendant’s Wheeler motion was not erroneous. B.

Evidence of Gang Membership Defendant moved in limine to exclude all evidence of his alleged gang membership on the grounds such evidence was irrelevant to motive and identity (Evid. Code, § 1101, subd. (b)) and unduly prejudicial (id., § 352). Defendant argued gang evidence was of limited probative value because the prosecution theory was not based on evidence the victim was a gang member. Before ruling on defendant’s motion in limine, the court stated it would hold admissibility hearings outside the presence of the jury pursuant to Evidence Code

section 402. Subsequently, the trial court denied defendant’s motion to exclude gang evidence. In making its ruling, however, the court stated it “would be concerned if the People’s evidence was repeated in reference to gang memberships to the extent that it may reflect other uncharged crimes,” and it would, therefore, “ask the People before they introduce this proof of gang membership, this proof of hostility, outside the presence of the jury to make an offer of proof.” The court again stated it would conduct “a proceeding outside the presence of the jury” prior to actually admitting gang evidence. In fact, no hearings under Evidence Code

section 402 were held prior to the trial court’s admission of testimony regarding gangs. Officer Johnson, John Gardner, Officer Holmes, Officer Mejia and Arthur Cox each gave such testimony. Officer Johnson testified as to his expertise and training about gangs, and about the rivalry between the Bloods and the Crips in the area where Dunn was shot. He further testified that the area of 88th and McKinley Streets was “mainly a blue Crip area but you will find some Blood members congregating there from time to time . . . ,” and that when he died Dunn was dressed “more like a Crip” than a Blood.

After Johnson testified, defendant renewed his motion to exclude gang evidence, on the ground Johnson had testified the shooting took place in Crip, not Blood, territory, which defendant argued undermined the prosecution’s gang confrontation theory. The prosecution responded that Johnson’s testimony established the intersection of 88th and McKinley was in an area where Crip and Blood “territory” overlapped and offered to prove, by a subsequent witness, that defendant had attended a meeting where Bloods discussed plans for killing Crips in that area. The trial court denied defendant’s renewed motion.

John Gardner testified that, shortly before the Dunn shooting, he attended a meeting between his gang set, the Inglewood Family Bloods, and the 89th Street Family Bloods, and that defendant was a leader of the meeting. Gardner testified the meeting was held for the two gang sets to combine forces to kill Crips and that several people, including defendant, had guns at the meeting.

Gardner also testified that after Dunn’s death defendant said to him: “I took shot . . . and took this fool out of the box, you know, from A.G. [i.e., Avalon Gardens, a housing project] Crips.” Officer Holmes testified as to his experience and training about gangs. Holmes testified John Gardner was a member of the 84 Swan gang and described the geographical location of the 84 Swans. Officer Mejia testified as to his experience and training about gangs. He identified as being in Blood territory some of the same streets Officer Johnson had earlier identified as being in Crip territory.

The defense objected to Officer Mejia marking this area blue on a map, which was a People’s exhibit, on the ground Mejia’s testimony conflicted with Johnson’s, but the court overruled the objection. Officer Mejia subsequently testified that the area claimed by the 89th Street Family Bloods was inhabited by the Avalon Gardens Crips as well. Arthur Cox testified that, in 1982, he and defendant were members, and defendant a leader, of the 89th Street Family Bloods, and that they “hung out” at 89th, Wadsworth and McKinley Streets, and at the home of Margot Bridges on 90th Street.

Defendant contends the trial court committed prejudicial error in permitting Officers Johnson, Holmes and Mejia to testify as gang experts. Defendant further contends the trial court erred in denying his motion to exclude all gang evidence because, as the prosecution’s attempt to establish a gang-related motive was logically flawed, the prejudicial effect of gang evidence outweighed its probative value. Finally, defendant complains the trial court neither provided the Evidence Code

section 402 hearings it had earlier promised nor observed limitations it had earlier set on use of gang membership evidence. 1. Denial of Motion in Limine We have recognized that admission of evidence of a criminal defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. (People v. Champion (1995) 9 Cal.4th 879, 922 [39 Cal.Rptr.2d 547, 891 P.2d 93], citing People v.

Pinholster (1992) 1 Cal.4th 865, 945 [4 Cal.Rptr.2d 765, 824 P.2d 571].) As defendant points out, evidence of a defendant’s criminal disposition is inadmissible to prove he committed a specific criminal act. (Evid. Code, § 1101.) Moreover, even where gang membership is relevant, because it may have a highly inflammatory impact on the jury trial courts should carefully scrutinize such evidence before admitting it. (People v. Champion, supra, 9 Cal.4th at p. 922.) The trial court did not err in denying defendant’s motion to exclude gang evidence.

As defendant acknowledges, in a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect. (People v. Champion, supra, 9 Cal.4th at pp. 922-923.) Gang evidence in this case was relevant to both motive and identity. The prosecution’s theory was that the victim Dunn, clothed in blue like a Crip and having traveled into an area “claimed” by both Bloods and Crips, was shot by a Blood for at least appearing to be a Crip.

Evidence defendant was a member and leader of a Blood gang set that operated in the area of the murder (Arthur Cox), that defendant led a meeting of Blood gang sets where killing Crips was discussed and weapons were distributed (John Gardner), as well as evidence describing gang colors, behavior and areas of influence (Officers Johnson, Holmes and Mejia) all had a “tendency in reason to prove” (Evid. Code, § 210) that defendant had a motive for killing, and may indeed have shot, a young male wearing blue clothing in the area where Dunn was shot.

Defendant argues the issue of gang hostility as a motive was not reasonably raised because the prosecution failed to adduce any evidence that the victim, Dunn, was a gang member. The contention fails for the obvious reason that defendant’s alleged motive to kill Crips was just as arguable on facts suggesting (as they did) that the victim was dressed like a Crip when he was shot, as it would have been on facts suggesting he actually was a Crip.

Similarly, contrary to defendant’s characterization, the prosecution did not stake the relevance of its gang evidence on Dunn’s having been shot in recognized Blood “territory.” The prosecution argued only that the area where Dunn died was frequented by Bloods as well as Crips, such that the area would occasionally be the scene of conflict between the two groups. Defendant argues even if gang membership evidence was relevant, its probative value was outweighed by its prejudicial effect. We do not agree. The gang evidence presented in this case was of more than minimal probative value.

It tended to establish, among other things, that the victim appeared to be a member of a gang which was a deadly rival of defendant’s gang. (Cf. People v. Sandoval (1992) 4 Cal.4th 155, 175 [14 Cal.Rptr.2d 342, 841 P.2d 862] [no error to admit gang membership evidence where evidence established that victims and defendants were members of rival gangs].) Nor does defendant argue the gang membership evidence was cumulative to other evidence of motive presented to the jury. (Cf. People v.

Cardenas (1982) 31 Cal.3d 897, 904 [184 Cal.Rptr. 165, 647 P.2d 569] [admission of evidence of gang membership to prove witness bias was abuse of discretion where bias already established by other testimony].) 2. Gang Experts Defendant never sought at trial to challenge the qualifications of the prosecution’s gang experts, and it is too late to raise the issue now. (People v. Roberts (1992) 2 Cal.4th 271, 298 [6 Cal.Rptr.2d 276, 826 P.2d 274].) In fact, defense counsel conceded that police officers can give expert testimony concerning gangs.

Nevertheless, defendant argues on appeal that Officers Johnson, Holmes and Mejia were not, under Evidence Code

section 720, qualified to testify as gang experts. Even if cognizable, the contention lacks merit. Admissible expert opinion must be based on matter that reasonably may be relied upon by an expert in forming an opinion on the subject to which his opinion relates. (Evid. Code, §801.) Defendant argues the testimony of Officers Johnson, Holmes and Mejia was not based on consistent and reliable data because some commentators on gang activities in Los Angeles have written that the Crips and the Bloods are poorly structured, undisciplined and lack leadership.

Defendant suggests the existence of such commentary calls into question the notion these gangs can influence their individual members to commit crimes. Defendant misses the mark, impliedly mischaracterizing the prosecution’s theory. John Gardner’s testimony was that defendant killed the victim, not because he was directed to do so by some gang member in authority over him, but in furtherance of a general plan to attack Crips in the area, which was settled upon at a Blood gang meeting led by defendant himself.

The record reveals the trial court properly permitted the officers to testify as gang experts, based upon their “special knowledge, skill, experience, training [and] education” (Evid. Code, § 720) related to gangs. At the time of the trial, Officer Johnson had been a gang investigator since 1973, had attended many seminars and classes on gang activity and gang crime, and had investigated more than a hundred gang homicides. Officer Holmes had worked with gangs for 10 years, specializing in them for 4.

He had testified in many courts as a gang expert, given many lectures concerning gang culture, and had appeared on local and national television to speak on the topic. Officer Mejia, a member of a special Los Angeles Police Department gang unit, had been involved with gangs for seven years and had attended numerous professional seminars regarding gangs. We have found qualified, as gang experts, officers with investigative experience similar to that of the officers here. (See People v. Gardeley (1996) 14 Cal.4th 605, 617-620 [59 Cal.Rptr.2d 356, 927 P.2d 713]; People v.

Roberts, supra, 2 Cal.4th at p. 298.) Expert opinion also must be related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).) Defendant cites People v. McClendon (1986) 146 Ill.App.3d 1004, 1008 [100 Ill.Dec. 671, 497 N.E.2d 849, 851-852] for the proposition gang membership is not so abstruse as to be beyond the ken of a juror. Obviously, this case from a sister state’s intermediate appellate court is not controlling.

More importantly, McClendon does not hold gang membership may not be the subject of expert testimony, only that it need not. In fact, the court in McClendon actually approved expert testimony by a police officer who had done investigative work in a gang crimes unit on the question whether the defendant was a gang member. (See People v. McClendon, supra, 146 Ill.App.3d at p. 1008 (497 N.E.2d at pp. 851-852].) In any event, we have without question permitted police to provide expert testimony regarding gangs. (See, e.g., People v. Champion, supra, 9 Cal.4th at p. 919; People v.

Fudge (1994) 7 Cal.4th 1075, 1091 [31 Cal.Rptr.2d 321, 875 P.2d 36]; People v. Hawthorne (1992) 4 Cal.4th 43, 52 [14 Cal.Rptr.2d 133, 841 P.2d 118].) 3. Foundational Hearings Defendant complains the trial court promised to conduct Evidence Code

section 402 hearings prior to actually admitting gang membership evidence, but never did so. Although it was at defense counsel’s suggestion the court deferred a determination as to whether police gang experts could testify, counsel raised no objection immediately prior to testimony by Officers Johnson, Holmes or Mejia. As defendant acknowledges, counsel only renewed his motion for exclusion of gang evidence following Officer Johnson’s testimony. In response, outside the jury’s presence, the court heard arguments of counsel and again denied defendant’s motion.

Defendant was heard only once more at trial regarding the admission of gang evidence—on a mistrial motion made after Officer Johnson had testified to his assignment with a gang unit. Again outside the jury’s presence, the court heard argument on and denied defendant’s motion. Under these circumstances the trial court was not bound to provide, unprompted, additional hearings under Evidence Code

section 402 merely because it had earlier suggested it would do so “at the appropriate time.” In determining the admissibility of evidence, the trial court has broad discretion. Thus, it is within the court’s discretion whether or not to decide admissibility questions under Evidence Code

section 402, subdivision (

b) within the jury’s presence. (People v. Mattison (1971) 4 Cal.3d 177, 187 [93 Cal.Rptr. 185, 481 P.2d 193].) A trial court’s ruling on admissibility implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. (Evid. Code, § 402, subd. (c).) A ruling on a motion under

section 402, moreover, is not binding on the trial court if the subject evidence is proffered later in the trial. (People v. Jackson (1980) 28 Cal.3d 264, 343 [168 Cal.Rptr. 603, 618 P.2d 149] (dis. opn. of Bird, C. J.), citing Saidi-Tabatabai v. Superior Court (1967) 253 Cal.App.2d 257 [61 Cal.Rptr. 510].) On appeal, a trial court’s decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code

section 402, is reviewed only for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1167 [36 Cal.Rptr.2d 235, 885 P.2d 1]; People v. Clair (1992) 2 Cal.4th 629, 676 [7 Cal.Rptr.2d 564, 828 P.2d 705].) In light of these principles, we conclude the trial court here was within its discretion in failing to conduct additional proceedings outside the jury’s presence on the question of gang evidence. Defendant also complains the trial court permitted the prosecution to use gang evidence on the issue of identity, after having ruled such evidence was relevant only to the issue of motive.

Defendant is mistaken in stating the court expressly limited gang evidence to the issue of motive. In fact, in ruling on the motion in limine the trial court stated: “I want to limit this proof to motive and to identity. . . .” Moreover, the court admonished the jury that testimony relating to gangs “was allowed only for the limited purpose of showing motive to commit the crime for which Mr. Williams is on trial or to prove identity.” We are satisfied there was no prejudicial error in the admission of gang evidence at defendant’s trial. C.

Witness Intimidation Evidence Mark Williams, who testified at defendant’s trial, had been previously prosecuted in juvenile court for the shooting of witness Patricia Lewis’s house. Evidence about the shooting of Lewis’s house was admitted at defendant’s trial.

On the basis of this evidence, the trial court instructed the jury regarding a criminal defendant’s attempts to suppress evidence as tending to show consciousness of guilt. (See CALJIC No. 2.06 (5th ed. 1988 bound vol.).) As detailed below, defendant contends the trial court committed numerous errors in admitting evidence about the shooting of Lewis’s house.

He argues admission of such evidence was prejudicial because “[b]y transforming this into a trial about the shooting of the witness’s home, the prosecution was able to transform a weak eyewitness into the heroine of the case.” Further, defendant argues the trial court erred when it instructed the jury with CALJIC No. 2.06, because there was insufficient evidence in the record to show that defendant directed or authorized the attack on the Lewis home. 1. Testimony of Patricia Lewis Patricia Lewis testified she saw defendant point a gun at Jerome Dunn and moments thereafter heard the fatal shots fired.

She also testified that, subsequently, on an evening in January 1983, while she was sitting in her living room with her grandson and husband, someone shot at her house continually for about 5 minutes, sending 45 to 50 bullets through the walls, windows and front door, frightening the occupants of the house and causing property damage (but not actually wounding any occupant). Lewis further testified that nothing like that had ever happened to her prior to her witnessing the Dunn shooting.

Defendant does not suggest the admission of Patricia Lewis’s testimony about her own victimization was independent error, only, as discussed below, that admission of the testimony by Mark Williams, Kenneth Simmons and Arthur Cox (which provided the foundation for admission of Lewis’s testimony) was error. Lewis’s dramatic testimony about the shooting of her house would not have been relevant, argues defendant, but for the erroneous admission of Williams’s, Simmons’s and Cox’s testimony linking the shooting to defendant. 2.

Testimony of Mark Williams and Kenneth Simmons Mark Williams admitted he was a member of the 89th Street Family Bloods gang set. Williams denied, however, that he shot at Patricia Lewis’s house and denied having a January 8, 1983, conversation with Kenneth Simmons regarding the shooting. Finally, Williams denied visiting defendant in jail in October or November of 1982 and testified his prior testimony to the contrary in certain juvenile court proceedings was not correct. The prosecution then called Kenneth Simmons to testify about prior inconsistent statements by Mark Williams.

Simmons also testified he was a member of the 89th Street Family Bloods gang set. Simmons testified that, in a conversation held while they ingested drugs together in an alley on the morning of January 7 or 8,1983, Mark Williams told him that he (Mark) and other persons had gone, one or two nights previously, “to take care of some business” for defendant, involving a female witness who lived on 87th Street. The prosecutor then asked: “Who did he say wanted it done?” Simmons answered: “Barry” [Williams, i.e., defendant].

Simmons also testified that Williams had a shotgun during that conversation and that he (Simmons) was arrested later that same day carrying a shotgun Williams had given him. Defendant argues admission of Simmons’s and Williams’s testimony was erroneous in several respects. First, defendant asserts Simmons’s testimony was improperly admitted because the prosecution failed to lay a proper foundation for it. Second, defendant contends admission of Simmons’s testimony violated his right of confrontation.

Third, defendant maintains admission of Simmons’s and Williams’s testimony was fundamentally unfair because the prosecution failed to show that defendant authorized or directed the intimidation of Lewis. Finally, defendant contends that, even if relevant, testimony by Simmons and Williams should not have been admitted because it was more prejudicial than probative.

The People laid a proper foundation for Simmons’s testimony about Williams’s out-of-court statements. “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code]

Section 770 [requiring a witness be given an opportunity to explain or deny any extrinsic inconsistent statement sought to be admitted].” (Evid. Code, § 1235.) Williams’s statements to Simmons regarding the shooting of Patricia Lewis’s house were inconsistent with Williams’s subsequent testimony at defendant’s trial.

According to Simmons, Mark Williams told him defendant wanted Williams to scare “the lady on 87th Street who was going to coúrt on him” so that “she doesn’t go to court.” Simmons further testified that Mark Williams said to him on January 7 or 8, 1983, that he (Mark Williams) and others had taken care of “some business” that “Barry” (i.e., defendant) wanted taken care of concerning “a witness,” a “lady” who lived on 87th Street. At defendant’s trial, when given an opportunity to explain or deny these statements, Williams denied that he made them.

Thus, the trial court properly overruled defendant’s hearsay objection to admission of Simmons’s testimony about Williams’s out-of-court statements. (Evid. Code, § 1235.) Defendant argues even if Williams’s statements to Simmons fall within a hearsay exception, they were inadmissible because no evidence showed Williams ever visited or communicated with defendant before the shooting of Lewis’s house, so as to acquire personal knowledge of defendant’s wishes in that regard.

In the absence of such evidence, defendant argues, any statement to Simmons by Williams purporting to describe defendant’s intention was not competent evidence. Defendant is incorrect. Williams testified at defendant’s trial that he recalled testifying at a previous juvenile court adjudication about his involvement in the shooting of Lewis’s house. Williams acknowledged he had testified in the earlier proceeding to visiting defendant at the county jail, although he denied that previous testimony was correct. The substance of Williams’s prior testimony was properly admitted pursuant to Evidence Code

section 1235, to show he communicated with defendant before the shooting of Lewis’s home. Admission of the testimony was not fundamentally unfair. Defendant argues admission of Mark Williams’s out-of-court statements violated his right of confrontation. Not so. “The receipt in evidence of a prior inconsistent statement does not violate the confrontation clauses of the federal and state Constitutions where the declarant testifies at trial and is subject to cross-examination.” (People v. Zapien, supra, 4 Cal.4th at p. 955.) Mark Williams testified at defendant’s trial and was subject to cross-examination.

Therefore, the trial court’s having received in evidence Mark Williams’s prior inconsistent statements to Simmons did not violate defendant’s confrontation right. Defendant further argues that, in any event, evidence Mark Williams visited him in jail could not have established a sufficient connection between defendant and the intimidation of Lewis to justify admitting the testimony of Simmons and Williams on that topic. Defendant cites People v. Hannon (1977) 19 Cal.3d 588, 599 [138 Cal.Rptr. 885, 564 P.2d 1203], and People v. Terry (1962) 57 Cal.2d 538, 566 [21 Cal.Rptr. 185, 370 P.2d 985].

In Hannon, we stated: “ ‘ “Generally, evidence of the attempt of third persons to suppress testimony is inadmissible against a defendant where the effort did not occur in his presence. [Citation.] However, if the defendant has authorized the attempt of the third person to suppress testimony, evidence of such conduct is admissible against the defendant.” ’ ” (People v. Hannon, supra, 19 Cal.3d at p. 599, quoting People v.

Weiss (1958) 50 Cal.2d 535, 554 [327 P.2d 527].) In Terry, we held that proof of a criminal defendant’s “mere opportunity” to authorize a third person to attempt to influence a witness “has no value as circumstantial evidence” that the defendant did so. (People v. Terry, supra, 57 Cal.2d at p. 566.) More than “mere opportunity” was shown here. First, as previously discussed, Kenneth Simmons testified Mark Williams told him that he and others had gone “to take care of some business” that “Barry” wanted done.

This “business,” Simmons testified Williams told him, involved “a witness,” a lady who lived on 87th Street.

That Simmons’s testimony suggested defendant authorized the shooting of Lewis’s home is illustrated by the fact that, after Simmons testified, defendant’s trial counsel (unsuccessfully) moved for a mistrial on the basis that the prosecutor had put into evidence “this statement that ‘Barry told me to shoot up her house’. . . ." Second, Arthur Cox testified that, while they were in jail together, defendant stated he (defendant) was “going to get some witnesses shot” in order to “beat this case.” Cox testified defendant “said he was going to get Curtis [Thomas] to shoot one of the witnesses . . . .” Cox further testified the witness defendant referred to was Patricia Lewis.

In light of the evidence showing that defendant authorized the shooting of Lewis’s house, the trial court properly admitted evidence of the shooting on the theory that evidence of attempts to suppress evidence are relevant to show consciousness of guilt. (People v. Hannon, supra, 19 Cal.3d at p. 599.) 3. Testimony of Arthur Cox Defendant contends admission of Cox’s testimony violated his Sixth Amendment right to counsel, as Cox was a government agent and deliberately elicited incriminating statements from defendant when his counsel was not present. (Massiah v.

United States (1964) 377 U.S. 201, 207 [84 S.Ct. 1199, 1203-1204, 12 L.Ed.2d 246].) Accordingly, defendant argues, the trial court erred in denying defendant’s motion to suppress the evidence of defendant’s statements to Cox. Defendant also argues Cox’s testimony was erroneously admitted as tending to prove defendant’s consciousness of guilt, because the statements Cox reported were cast only in terms of an intention to suppress evidence, not in terms of an admission of having done so. Finally, defendant argues admission of Cox’s testimony violated Evidence Code

section 352. Defendant asserts Arthur Cox was not acting on his own initiative when he reported defendant’s jailhouse statements about shooting Lewis’s house. According to defendant, Cox was “in effect directed” to elicit incriminating information. Defendant argues government agents induced Cox to act on their behalf in exchange for leniency on a robbery charge that was pending against him. Defendant does not claim that police or prosecutors made any explicit request of Cox for information, nor that they expressly promised him any benefit for eliciting statements.

Instead, defendant claims Cox was given the “impression” that a deal was possible, and was led by indirect comments to expect leniency if he were to elicit incriminating information from defendant. The record, however, reveals no Massiah violation. Defendant was arrested on these charges in April 1982. In early July 1982, Officer Mejia testified, after defendant’s preliminary hearing on these charges had concluded, he received a call from Arthur Cox, who, like defendant, was being held in Los Angeles County jail. Cox was charged with burglary and personal use of a gun.

Mejia went down to the jail and met with Cox. Cox told Mejia he wished to cut a deal for information. Mejia told Cox he could not promise anything and that he would have to see the district attorney. Before departing, Mejia testified, he made clear to Cox that Cox was not his agent and that there was no deal. About a week later, Deputy District Attorney Jacobs accompanied Mejia to the county jail and met with Cox. Jacobs’s primary interest in talking with Cox was in connection with Cox’s status as a victim and witness on an unrelated murder case.

At the meeting, Jacobs testified, Cox related certain statements defendant allegedly had made regarding a series of incidents between the 89th Street Family Bloods and the Avalon Gardens Crips. Among other things, Cox related defendant’s statements about a killing at Green Meadow Park, in connection with which defendant had been indicted. Jacobs was at that time assigned to prosecute the Green Meadow Park incident. Cox also related some statements defendant allegedly had made about the shooting of Jerome Dunn.

Cox told Jacobs that defendant had said Curtis Thomas was in the van with him at the time Dunn was shot and that defendant had told Thomas to shoot. Jacobs testified he did not recall Cox speaking that day about Patricia Lewis. Jacobs testified he told Cox, “I’ll get back to you,” and that he further indicated if anything could be worked out it was not up to Jacobs, but to his supervisors.

Jacobs told Cox it would “take considerable amount of persuasion on my part to get anything done.” Jacobs acknowledged indicating to Cox he was “interested to know what his [i.e., defendant’s] reaction is now.” Later in the interview, Mejia apparently said to Cox: “If you talk to him now, he would have a different thing to say about beating it.” But, Jacobs testified, he did not promise Cox leniency, intercede to affect the handling of Cox in jail or ask Cox to obtain any additional information.

Similarly, Mejia testified that neither he nor anyone else present at the interview exchanged anything with Cox or promised him anything in exchange for information. On September 2, 1982, Mejia testified, Cox called him from jail with information about the shooting of Lewis’s house. Cox told Mejia that defendant, in a conversation with Cox, had indicated he was “going to” use one of his friends, or “home boys,” named Curtis Thomas, to get rid of witness Patricia Lewis by killing her. In that conversation, Mejia testified, he neither requested of Cox additional information nor promised Cox any reward.

Subsequently, the police provided 24-hour protection to Lewis. Jacobs testified that, in September 1982, he wrote a letter to counsel for the Youthful Offenders Parole Board, California Youth Authority, requesting that a certain parole hold on Cox be lifted so Cox could be released from jail. Jacobs desired Cox’s release because he wanted to call Cox to testify without endangering Cox’s life, and, in Jacobs’s opinion, Cox’s life would have been endangered if Cox testified while remaining in jail. Cox pled guilty to the robbery charge with use of a firearm under

section 12022.5. In exchange for the plea, Jacobs struck the allegation under

section 1203.06 (which, if true, would have barred Cox’s probation, thus ensuring his being sent to state prison or the Youth Authority). At trial, defendant, pursuant to Massiah v. United States, supra, 377 U.S. 201, moved to suppress evidence of his statements to Cox. Defendant suggests Cox was induced by Jacobs’s and Mejia’s comments at the July 1982 jail meeting to seek additional incriminating information from defendant.

Defendant further suggests the sentence Cox received on his robbery charge, favorable dispositions on a probation violation and a parole violation, and certain small monetary payments together constituted quid pro quo for the information Cox had provided. Accordingly, defendant argues, Cox was a government agent when defendant made incriminating statements to him, and the trial court erred in denying his suppression motion. We disagree.

As we have recognized, “[i]n order to prevail on a Massiah claim involving use of a government informant, the defendant must demonstrate that... the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.” (In re Neely (1993) 6 Cal.4th 901, 915 [26 Cal.Rptr.2d 203, 864 P.2d 474].) The trial court properly denied defendant’s Massiah motion because defendant failed to meet either prong of the foregoing test.

Defendant established neither that Cox was acting “under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage” nor that he “deliberately elicited incriminating statements” from defendant. “Where [—as here—] the informant is a jailhouse inmate, the first prong of the foregoing test is not met where law enforcement officials merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.” (In re Neely, supra, 6 Cal.4th at p. 915.) As the trial court observed, Cox’s telephone contact with the police regarding defendant’s case was initiated by Cox himself.

All of the prosecution witnesses who testified on the suppression motion stated they in no way asked or even suggested that Cox should be their agent. No evidence contradicted that testimony. The trial court also found that Cox had neither been promised nor led to expect any benefit in return for his statements. Jacobs’s remark that he would be “interested to know what [defendant’s] reaction is now” plainly does not constitute an express request or direction that Cox act as a government agent. Moreover, we agree with the trial court that the remark must be considered in its context.

Just before making the remark, Jacobs told Cox he had an absolutely airtight case against defendant and did not need Cox’s statement. The trial court correctly concluded Jacobs’s statement did not, under the circumstances, imply that Cox should act for the prosecution or the police. Defendant points out that Cox spoke with prosecutors more than once, that he informed on defendant and that he subsequently received what appears to have been favorable treatment as to various penalties.

We have not found such circumstances sufficient to support a conclusion that an informant was motivated to inform by prosecutorial promises of leniency. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1249-1250 [278 Cal.Rptr. 640, 805 P.2d 899].) In Pensinger, we observed: “[The inmate-informant]’s housing arrangement had nothing to do with any hope of eliciting information from defendant. . . . [N]o officer ever promised [the inmate-informant] any benefit. No one asked him to perform any service.

The police simply made use of [the inmate-informant] ’s own motivation to inform on defendant, a technique we found not to be a knowing subversion of the defendant’s right to counsel . . . .” (People v. Pensinger, supra, 52 Cal.3d at p. 1250, citing People v. Whitt (1984) 36 Cal.3d 724, 742-743 [205 Cal.Rptr. 810, 685 P.2d 1161].) Similarly here.

There was no evidence prosecutors or police deliberately placed Cox in proximity to defendant in jail. “Absent evidence of direct motivation by police in this case, or of a prior ‘working relationship’ between [the informant] and the authorities from which such encouragement might be inferred, there is no basis to hold the police accountable for [the informant]’s decision to question defendant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1241 [275 Cal.Rptr. 729, 800 P.2d 1159], citing People v.

Whitt, supra, 36 Cal.3d at p. 744.) Defendant also failed to establish that Cox deliberately elicited defendant’s statements. As defendant acknowledges, in order to establish a Sixth Amendment violation, “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” (Kuhlmann v.

Wilson (1986) 477 U.S. 436, 459 [106 S.Ct. 2616, 2630, 91 L.Ed.2d 364].) Although Cox testified that he and defendant talked about their cases together, nothing in the record suggests that Cox actively questioned defendant about defendant’s case. As discussed, there was no evidence prosecutors or police directed that Cox be jailed in proximity to defendant.

If it were necessary to reach the question (which it is not, inasmuch as the trial court, as discussed above, properly found the government did not have a preexisting arrangement with Cox), we would conclude Cox acted as “a mere governmental ‘listening post,’ which, according to Kuhlmann, raises no Sixth Amendment concern.” (People v. Williams (1988) 44 Cal.3d 1127, 1141 [245 Cal.Rptr. 635, 751 P.2d 901].) Thus, the trial court properly denied defendant’s suppression motion.

As the People acknowledge, defendant at trial also objected on relevance grounds to the admission of Cox’s testimony. “[People v. ] Weiss[, supra, 50 Cal.2d 535] holds that the admission of evidence purporting to show the suppression or attempted suppression of evidence is erroneous absent the prerequisite of proof that the defendant was present at such an incident or proof of authorization of such illegal conduct.” (People v.

Hannon, supra, 19 Cal.3d at p. 600.) Invoking Weiss, supra, 50 Cal.2d 535, defendant correctly notes that Cox’s testimony about defendant’s statements suggested defendant phrased them in terms of an intention to arrange for suppression of Mrs. Lewis’s evidence, rather than in terms of an admission that he had already done so. Even so, Weiss would not for that reason bar admission of the statements. “From the declared intent to a do a particular thing an inference that the thing was done may fairly be drawn.” (People v. Alcalde (1944) 24 Cal.2d 177, 185 [148 P.2d 627], citing Mutual Life Ins. Co. v.

Hillmon (1892) 145 U.S. 285, 295-296 [12 S.Ct. 909, 912-913, 36 L.Ed. 706].) Thus, defendant’s “declarations of . . . intent are admissible ... as evidence of the probable doing of the act. . . (People v. Weatherford (1945) 27 Cal.2d 401, 422 [164 P.2d 753].) Specifically, the statement by defendant indicating he was “going to” have witnesses or a witness shot, would constitute evidence from which the trier of fact could infer that he authorized the shooting that actually occurred. Such evidence is admissible to prove consciousness of guilt. (People v.

Weiss, supra, 50 Cal.2d at p. 554.) Therefore, Cox’s testimony about defendant’s statements was not inadmissible on the ground the statements expressed intention only. Finally, defendant complains that, in admitting Cox’s testimony, the trial court failed to weigh its prejudicial effect against its probative value. (Evid. Code, § 352.) As he concedes, however, defendant failed at trial to object to admission of Cox’s testimony on

section 352 grounds. Indeed, the record reveals he objected only on relevancy grounds. Consequently, any objection based on the prejudicial effect of Cox’s testimony was waived. (Evid. Code, § 353, subd. (a); People v. Garceau (1993) 6 Cal.4th 140, 179 [24 Cal.Rptr.2d 664, 862 P.2d 664].) Defendant’s relevancy objection to witness intimidation evidence has been discussed. In a single sentence, defendant asserts his trial counsel was ineffective for not specifically objecting on Evidence Code

section 352 grounds to admission of Cox’s testimony. Points “perfunctorily asserted without argument in support” are not properly raised. (People v. Ashmus (1991) 54 Cal.3d 932, 985, fn. 15 [2 Cal.Rptr.2d 112, 820 P.2d 214].) To the extent defendant means impliedly to adopt his argument on the merits of the trial court’s failure to conduct

section 352 weighing as also showing why counsel was ineffective, we reject the conclusion. As discussed, Cox’s testimony was relevant to prove defendant’s consciousness of guilt. It is not reasonably probable that an objection on

section 352 grounds would have succeeded. In sum, defendant fails to demonstrate the trial court erred in admitting testimony from Patricia Lewis, Kenneth Simmons, Mark Williams and Arthur Cox that defendant authorized or directed the shooting of Patricia Lewis’s house. As that evidence was admissible, the court did not err in instructing the jury with CALJIC No. 2.06, regarding consciousness of guilt. D.

Limitation on Cross-examination of Arthur Cox As previously discussed, Arthur Cox testified for the prosecution about incriminating statements defendant allegedly made while Cox and defendant were in jail together. Defendant complains that, in twice sustaining prosecution objections to defense counsel’s cross-examination of Cox regarding Cox’s sources of material support, the trial court violated defendant’s due process rights and right of confrontation. Cox was extensively cross-examined by defense counsel. The trial court sustained objections by the prosecution to three lines of defense counsel’s questioning.

Defendant contends two of the rulings were erroneous. Defendant challenges the trial court’s ruling sustaining the prosecution’s relevancy objection to the question: “How do you come up with the money [to pay for your current rent]?” Defendant also contends the trial court erred in sustaining the prosecution’s relevancy objections to questions about the manner in which Cox supported himself after he was released from jail. Defendant accurately observes the high court has “ ‘recognized that the exposure

[…]