THE PEOPLE, Plaintiff and Respondent, v. CHARLES DELL RIEL, Defendant and Appellant, 22 Cal. 4th 1153

Opinion CHIN, J. A jury convicted defendant of the first degree murder, robbery, and kidnapping of Edward Middleton and found true special circumstance allegations of robbery murder and kidnapping murder. The jury also found that defendant personally used a deadly weapon as to all counts, and that he had two prior second degree burglary convictions for which he served a prison term. After the penalty trial, the jury returned a verdict of death, and the court imposed that sentence. This appeal is automatic. (Pen. Code, § 1239.) We will strike a redundant prior prison term finding and otherwise affirm the judgment.

I. Facts A. Guilt Phase 1. Prosecution Evidence During the night of November 2-3, 1986, Edward Middleton worked the night shift at Rambo’s Truck Stop on Interstate 5 near Weed. In the early morning hours, he was robbed, driven to Shasta County, and there murdered. The evidence showed that three persons committed the crime: defendant, Virgil Edwards, and John Osborne. After the crime, the drawer to the store’s cash register was left open. Middleton’s eyeglasses and hearing aid were found inside the store along with a charge slip for gasoline containing Osborne’s signature.

The store owner determined that about $328 was missing from the cash register. Beer cans found at the truck stop contained defendant’s and Osborne’s fingerprints, and Osborne’s fingerprint was found on a store doorknob. Middleton’s body was found down an embankment below the roadway of Soda Creek Road in northern Shasta County. A bloody tire iron and an air pressure gauge were found on the road itself. The victim died of multiple blunt force injuries to the head and face, consistent with being hit with the tire iron, and of multiple stab wounds to the chest and back. Edwards testified.

He said he had agreed to testify truthfully in exchange for pleading guilty to first degree murder and receiving a prison sentence of 25 years to life. On November 2, 1986, he drove with defendant from Klamath Falls, Oregon, to Weed in his 1973 Oldsmobile Cutlass. That afternoon, they met Osborne, whom both knew, at Rambo’s Truck Stop, where Osborne worked. The group smoked marijuana, drank beer, and visited various other persons and places.

Edwards said that during the afternoon and evening, defendant and Osborne got “drunk,” and he himself was “stoned.” Eventually, the three returned to the truck stop, arriving around 2:15 a.m. on November 3, 1986. Middleton was on duty, and a truck driver was present with his truck. Edwards filled his car with gas—which they charged—while defendant and Osborne, both drinking beer, went inside the store. The three then drove up a nearby dirt road. Edwards retrieved a knife from the trunk.

As they were “sitting in the car, [they] cut [their] fingers,” then put them together to “become blood brothers.” The three planned to wait until the truck driver left, then defendant “would go inside, knock the guy out, and just take the money.” After the truck driver left, Edwards drove the car back to the truck stop. Defendant got out and “went around the side of the building,” where he remained for about a minute and a half. Then Osborne joined him. About 30 seconds later they returned with Middleton between them. Defendant and Osborne forced Middleton into the backseat.

Defendant sat next to him, and Osborne sat in the front. Edwards said that defendant put a knife to Edwards’s throat and told him to drive. Edwards drove onto the freeway. While they were driving, defendant hit Middleton and demanded his wallet. Middleton gave defendant his wallet. Defendant opened it, took out some money, and said, “Thirteen bucks. I’m going to kill you now.” Edwards pulled to the side of the road and parked. He and Osborne said to let the man go. Defendant told them to “shut up,” or he would kill them too. He directed Edwards to continue driving.

Edwards did so, then eventually left the freeway and stopped in a dark area. They all got out of the car. Edwards opened the trunk and, at defendant’s direction, took out a tire iron and gave it to defendant. Defendant hit Middleton in the head with the tire iron. Middleton fell to the ground. Defendant, who had the knife, said to the others, “We are all in this together; and now you got to stab him. ... If you don’t stab him, you will be right here with him.” Edwards and Osborne stabbed Middleton.

Defendant then “went to move the guy off the side of the road.” As he was doing so, he lost his footing and “fell down the hill with the man on top of him.” Osborne helped defendant “move the body off.” The trio drove away. While they were driving, defendant licked some blood off the knife and ordered the others to do the same. Later they washed the knife at a rest area and split up the money. Edwards received $33. They continued driving, finally stopping at defendant’s sister’s house in Vacaville. Various people who were with the trio in Weed before the crime or in Vacaville after the crime also testified.

Melinda Peterson testified that defendant, Edwards, and Osborne were at her home in Weed shortly before the crime. Defendant and Osborne asked her husband, Rick, for a gun. He told them no. Edwards said, “Well, we don’t need a gun. I have a knife.” The three left. Before they left, defendant said, “Come on, let’s get out of here and get this over with.” Based on defendant’s statements, she thought they were planning to commit a robbery, and she did not want her husband to go with them. Rick Peterson testified that defendant and Osborne asked him for a gun.

Earlier, he had told police that Edwards had asked for the gun. Among the stops the trio made in Vacaville was a visit to the home of defendant’s sister, Roslyn Walker, and Candy Cobb. Cobb heard defendant say “they had gotten fucked up and there was a man in a coma.” Walker testified that defendant told her, “Sis, I have something to tell you. There is a man in a coma.” Tami Sisco testified that on the night of the murder, she saw two men, apparently Edwards and Osborne, and an older car with an Oregon license plate in the area of the truck stop.

James Tolley, a truck driver, testified he stopped at the truck stop around 1:15 to 1:30 that morning. He observed two people, whose descriptions matched Edwards and Osborne. Forensic analysis of blood found on defendant’s boots and pants showed it could not have come from defendant, Edwards, or Osborne, but was consistent with Middleton’s blood. 2. Defense Evidence Defendant testified. He admitted being with Edwards and Osborne before and after the robbery and murder.

But he said that he had been doing so much drinking the day of the crime that he fell asleep in the backseat of Edwards’s car and slept through the crime. After he fell asleep, the next thing he remembered was that Edwards woke him up and told him to help Osborne “move a body.” He got out of the car and saw a body “lying on the road.” He “helped [Osborne] move the body off the side of the road” then got back in the car and fell asleep again. Defendant denied any involvement in the killing itself. 3.

Bifurcated Trial on Prior Prison Terms After the guilt verdict, at a bifurcated trial, the jury found true that defendant had suffered two felonies for which he served a prison term. B. Penalty Phase The prosecution presented no additional evidence at the penalty phase. The defense presented two witnesses in mitigation. Ardell Morgan, the director of a private special education school in Washington that defendant attended when he was a teenager, testified about his good qualities. He had a learning disability and was gentle and helpful.

Joseph Ross, a supervisor at the McNeil Island Correctional Center in Washington where defendant had been incarcerated, testified that defendant had been a good worker in prison and had presented no problems. In his opinion, defendant would not be a problem in prison if he received a sentence of life without the possibility of parole. II. Discussion A. Guilt Phase 1.

Failure to Conduct the Trial with Sufficient “Seriousness and Decorum” Defendant contends his attorneys, Frank O’Connor and Russell Swartz, “did not conduct themselves with the seriousness and decorum appropriate to a trial in which a human life is at stake,” and the trial court erred by failing to control this inappropriate conduct. “Well-conceived judicial humor can be a welcome relief during a long, tense trial. Obviously, however, the court should refrain from joking remarks which the jury might interpret as denigrating a particular party or his attorney.” (People v.

Melton (1988) 44 Cal.3d 713, 753-754 [244 Cal.Rptr. 867, 750 P.2d 741].) Here, defendant’s primary complaint is not of misconduct by the court, or even the prosecutors, but by his own attorneys.

Accordingly, his real claim is that his attorneys provided ineffective assistance. “To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v.

Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 2068, 80 L.Ed.2d 674].)” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212 [65 Cal.Rptr.2d 240, 939 P.2d 354].) Defendant has shown neither deficient performance nor prejudice. Defendant claims counsel did not take the trial seriously. During jury selection, while discussing the possibility of a penalty phase, one of the defense attorneys told a prospective juror that the defense was not conceding guilt.

Counsel said, “We intend to go out there and have a lot of fun in the next couple weeks trying the case.” Another time, when cross-examining a witness during the guilt phase, counsel referred to the defense attorneys’ having “fun.” These references to having “fun” were clearly a colloquial way to say the defense would test and attack the prosecution case, not that the trial was merely a game. We have reviewed the remaining comments defendant has culled from a lengthy transcript and find nothing inappropriate.

Counsel did make some lighter comments, a few in front of the jury, but nothing suggesting counsel did not take their overall responsibility very seriously. Defendant also complains of counsel’s occasionally self-deprecating humor, which he claims was “selling the defense short.” Again, we have reviewed the comments and see nothing inappropriate. The humor was directed at the attorneys themselves, not at their client or the strength of their case. Defendant also claims counsel displayed “unreasonable obsequiousness” towards Sergeant Jarrett and, to a lesser extent, other persons.

Jarrett was the designated investigating officer who remained with the prosecutors in the courtroom and testified about part of the investigation. Defense counsel did indeed make clear to the jury, often in humorous ways, that the defense was not attacking Jarrett or his testimony.

At one point, outside the presence of the jury, defense counsel told the court that Jarrett was “one of the few people that’s trusted by both sides in this case.” Defendant argues that when defense counsel “said in closing argument that he ‘[w]ouldn’t dream of attacking Larry [Jarrett],’ he was in essence saying he wouldn’t dream of attacking the prosecution’s case against his client.” On the contrary, counsel did attack the prosecution’s case; they attacked it vigorously. They strongly challenged the credibility of Edwards and other lay witnesses. They did not, however, attack everything and everyone.

Often it is effective to make clear to a jury that the defense is not challenging the investigators, but rather the testimony of lay witnesses like Edwards, who had an obvious motivation to minimize his own culpability. No doubt Jarrett was a credible witness. Even today, defendant cites no part of his testimony that counsel should have attacked or, indeed, anything inconsistent with the defense theory of the case. Counsel’s statement that he was not going to attack Jarrett was a prelude to his argument that Jarrett’s testimony aided the defense.

Competent counsel may reasonably choose not to attack every prosecution witness, but only those who are vulnerable and clearly adverse to the defense case. Competent attorneys, including competent criminal defense attorneys, have varied styles in front of juries. Some are hard-charging, others soft-spoken; some try to gain the jurors’ confidence by humor or other means, others are always businesslike; some profess incredulity at all opposing evidence, others save their ammunition for specific targets. Competent attorneys might adopt different styles for different cases. No single right way exists to try a case.

Here, counsel used humor on occasion and attacked the credibility of the lay witnesses rather than the investigation or investigators. We see nothing incompetent in this style or approach. Counsel could reasonably believe it the most effective way to try this particular case before this particular jury. Defendant contends the court erroneously failed to control the alleged inappropriate behavior. We need not discuss the scope of the court’s duty to control a defense attorney’s behavior or style in the courtroom, for here there was no misbehavior to control.

Defendant also complains of one jocular comment the court made to the jury when resuming the trial after a hearing in its absence. Defendant has forfeited the complaint because he did not object at trial. (People v. Melton, supra, 44 Cal.3d at p. 753.) The lack of an objection is also understandable, as the comment was innocuous. “At no time did either court or counsel cross the line from the proper to the improper.” (People v.

Freeman (1994) 8 Cal.4th 450, 512 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].) “Moreover, even if we were to assume that any of the exchanges were improper, there is no suggestion of prejudice to defendant. The trial as a whole, especially the portion in front of the jury, was conducted with appropriate solemnity.” (Ibid.) On another point that defendant claims is related, he argues that the court inadequately admonished the jury when recessing. (See § 1122; People v.

Morales (1989) 48 Cal.3d 527, 564-565 [257 Cal.Rptr. 64, 770 P.2d 244].) Early in the trial, the court instructed the jurors not to discuss the case or form any opinions about the facts until the matter had been submitted to them. Then the parties stipulated that the court need not repeat that admonition at every break, and it often did not do so. In light of the admonitions actually given and the parties’ stipulation, we conclude both that defendant has waived the contention and that he has suffered no prejudice. (People v. Espinoza (1992) 3 Cal.4th 806, 822-823 [12 Cal.Rptr.2d 682, 838 P.2d 204]; People v.

Morales, supra, 48 Cal.3d at p. 565; People v. Heishman (1988) 45 Cal.3d 147, 174-175 [246 Cal.Rptr. 673, 753 P.2d 629].) 2. Jury Selection During jury selection, over defense objection, the prosecutor asked prospective jurors whether they would vote to convict if he proved defendant guilty beyond a reasonable doubt. As he did at trial, defendant contends the questions were an attempt to commit the jurors to vote in a particular way in violation of former

section 1078. It is “settled that the examination of prospective jurors should not be used ‘ “to . . . compel the jurors to commit themselves to vote a particular way ....”’ [Citations.]” (People v. Fierro (1991) 1 Cal.4th 173, 209 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) The challenged questions did not, however, commit the jurors to vote in any particular way. The prosecutor merely sought assurances that the jurors would properly perform their duty, i.e., would convict if the prosecution proved its case beyond a reasonable doubt.

The questions were proper, just as the defense could properly have sought assurances that the jurors would acquit if they had a reasonable doubt as to guilt.

The questions here were just as proper as those we upheld in Fierro, where the prosecutor “[essentially . . . asked the jurors to state whether they would be able to vote guilty if, after deliberations, they were persuaded that the charges had been proved beyond a reasonable doubt.” (Ibid.) The prosecutor also explained that he only had to prove defendant guilty of all elements of the crime beyond a reasonable doubt and did not have to answer all questions the jurors may have about the case. This explanation was proper.

Contrary to defendant’s argument, the prosecutor did not suggest that unanswered questions were irrelevant to the case or to the question of guilt. Obviously, some unanswered questions might create a reasonable doubt of guilt; others might not. The prosecutor fully explained, and accepted, his burden of proof. He merely sought assurances the jurors would not require more from the prosecution than the law requires. We find no error. 3. Evidentiary Issues a. Edwards’s Testimony Defendant contends the court should not have allowed Edwards to testify.

He did not object to his testimony at trial, so the issue is not cognizable on appeal. (People v. Freeman, supra, 8 Cal.4th at p. 488; People v. Sully (1991) 53 Cal.3d 1195, 1216 [283 Cal.Rptr. 144, 812 P.2d 163].) Defendant argues defense counsel were ineffective in failing to object. However, he has shown no basis on which to exclude Edwards’s testimony. Defendant’s primary argument is that, as a result of his plea agreement, Edwards believed he was required to testify against defendant in a certain way. “As we observed in People v.

Allen (1986) 42 Cal.3d 1222, 1251-1252 [232 Cal.Rptr. 849, 729 P.2d 115]: ‘“[A] defendant is denied a fair trial if the prosecution’s case depends substantially on accomplice testimony and the accomplice witness is placed, either by the prosecution or by the court, under a strong compulsion to testify in a particular fashion.” . . .

Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police ... or that his testimony result in defendant’s conviction ... the accomplice’s testimony is “tainted beyond redemption” and its admission denies defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid.’ (Italics added.)” (People v.

Sully, supra, 53 Cal.3d at pp. 1216-1217.) The agreement in this case was permissible. Without contradiction, Edwards testified that he had entered into an agreement in which he would plead guilty to first degree murder and testify truthfully in this trial. In return, he would be sentenced to prison for 25 years to life, and the other charges, including the special circumstance allegations that made him death eligible, would be dismissed. He was obligated to tell the truth, not to conform his testimony to any prior statement given the police or anyone else, or otherwise to testify in any particular fashion.

Indeed, defendant concedes that Edwards’s trial testimony did not entirely conform to any of his pretrial statements. Defendant argues that Edwards did not actually plead guilty pursuant to the agreement and was not sentenced until after he testified.

This circumstance did not invalidate the agreement. “[T]hough the bargain obviously contained ‘a . . . degree of compulsion [of the type] inherent in any plea agreement or grant of immunity’ [citation], from [the witness’s] perspective the degree of compulsion was not overwhelming, and more important, the only demand [the witness] understood the agreement made of him was to tell the truth. Such a bargain did not make the trial fundamentally unfair, and hence did not offend defendant’s due process rights.” (People v.

DeSantis (1992) 2 Cal.4th 1198, 1219-1220 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) Citing one portion of the lengthy cross-examination, defendant claims Edwards in fact believed the agreement required him to testify in a particular fashion.

Defense counsel was questioning Edwards about whether he had told someone before the crime, “We don’t need a gun, we [or I] have a knife.” At that point of the cross-examination, Edwards testified he did not remember making that statement but, because he had earlier testified he did say it, “I’m just up here saying I did because I’m tired of having all kinds of flack.” Defense counsel exploited this testimony in some detail, and finally Edwards explained, “You think I like sitting up here and taking this. I didn’t actually kill that man. I have to go up and cop to first degree murder when I didn’t kill that man.

Sure, I was in for the robbery and that, but I’m not going to sit up here and lie for nobody. I may be lying about what I supposedly said because I’m tired of getting all kinds of flack. So I just finally gave up and said fine, I’ll go ahead and say that ‘We don’t need a gun, I got a knife.’ ” Defense counsel succeeded in getting Edwards to contradict himself, thus casting doubt on his credibility, but this testimony presents no basis on which to disqualify him as a witness. Edwards did not suggest that his plea agreement required him to give this testimony.

It is not clear what Edwards meant by “flack,” but most likely he was referring to the lengthy and hostile cross-examination. (Because the defense did not object to Edwards’s testifying, no one had much reason to investigate this point further.) The testimony that Edwards gave to avoid “flack”—that he told someone before the murder the men did not need a gun because he (or they) had a knife— was not something he felt compelled to say to please the prosecution. The statement tended to increase his involvement in the crime, not defendant’s.

Edwards repeatedly said his understanding of the agreement was that he was to tell the truth. Whether, and to what extent, he did so, was for the jury to determine, but the record does not support defendant’s claim that the agreement compelled him to testify in a particular way. Defendant’s next argument is similar to one we rejected in People v. DeSantis. “[D]efendant contends his due process rights were violated even if the agreement required only that [the witness’s] testimony conform with the truth, because [the witness] in fact believed he was required to testify according to a predetermined formula.

The record belies this contention. Questioned again and again about his understanding of the nature of the testimony he was to give, [the witness] continued to emphasize his understanding that he was to tell only the truth. [¶] We also find of paramount significance the fact that the jury was aware of the bargain: [the witness] was extensively and effectively examined by defendant’s counsel on his expectations of a reduced sentence following his testimony.

The jury had every opportunity to discount or entirely disbelieve [the witness’s] testimony—an opportunity enhanced by the court’s instructions that [the witness] was an accomplice as a matter of law and that an accomplice’s testimony is to be distrusted.” (People v. DeSantis, supra, 2 Cal.4th at p. 1220.) Defendant also argues the record supplies many reasons for the jury to question Edwards’s testimony. Edwards’s credibility was indeed suspect. Defense counsel cross-examined him effectively.

Edwards made many prior inconsistent statements and had an obvious motive to blame defendant and minimize his own participation in the crime. He admitted he lied numerous times in the past about this crime. But these circumstances—known to the jury—do not provide a basis to exclude his testimony. Edwards, Osborne, and defendant were the ones who best knew exactly what happened during the crime. Osborne was unavailable to testify. Edwards and defendant did testify, even though both had reason to he.

Defendant had no right to have the jury hear only his version of the events and not the contrary testimony of another participant. It was for the jury to evaluate the testimony of both and the remaining evidence and determine where the truth lay. Defendant also claims that Edwards was so incredible that the prosecution presented false testimony in using him as a witness. We disagree. The prosecution simply presented its evidence and allowed a fully informed jury to evaluate it. We rejected a similar contention in People v. Gordon (1973) 10 Cal.3d 460 [110 Cal.Rptr. 906, 516 P.2d 298].

In that case, the prosecutor told the jury in his opening statement he did not think that Carolyn, his “ ‘star witness,’ ” would tell the whole truth because he believed, contrary to her testimony, that both the defendant and she committed the charged murder together. (Id. at p. 472.) The defendant argued that “he was denied a fair trial because of knowing use of perjured testimony by the state.” (Id. at p. 473.) We disagreed: “In effect, [the prosecutor] was presenting [Carolyn’s] testimony with a full admonition of its doubtful veracity, so that the jury could decide for itself which of the conflicting versions of the incidents in question was true.

The prosecutor, despite his suspicions, did not know Carolyn’s testimony was perjured .... Moreover, defendant makes no showing that any of Carolyn’s testimony was in fact perjured. . . . Finally, it is significant that Carolyn was the only person other than defendant who knew what actually occurred. The parties to litigation generally cannot choose all their witnesses; some are forced upon them by circumstance.

We conclude, therefore, the prosecution’s presentation of Carolyn’s testimony did not constitute a denial of due process.” (Id. at p. 474, original italics, fn. omitted.) Similarly, the prosecutor here was not present at the murder scene. He did not know whether or to what extent Edwards might be lying at trial. Only defendant, Edwards, and Osborne were present at the crime. Only they knew for sure what happened. Allowing both Edwards and defendant to testify subject to cross-examination and impeachment by available evidence, as was done here, afforded defendant a fair trial and comported with due process.

Based largely on his previous arguments, defendant also contends that the heightened reliability required in a capital case prohibits a conviction based on Edwards’s testimony. We disagree. The jury was instructed on the reasonable doubt standard; no higher standard applies even in a capital trial. “There is no requirement, under the Eighth Amendment to the federal Constitution, to instruct on a higher standard of proof of guilt at the penalty phase of a capital trial. (See Franklin v. Lynaugh (1988) 487 U.S. 164, 172-175 [101 L.Ed.2d 155, 164-167, 108 S.Ct. 2320].)” (People v.

Kaurish (1990) 52 Cal.3d 648, 706 [276 Cal.Rptr. 788, 802 P.2d 278].) Both available eyewitnesses to the events testified subject to thorough cross-examination and impeachment. Moreover, Edwards’s testimony was not all that incriminated defendant. Indeed, the jury did not have to believe all of that testimony to find defendant guilty of the charges or even to return a verdict of death. The jury may well have been skeptical, or may have entirely disbelieved, parts of that testimony. Defendant blamed Edwards and Osborne for the murder. Edwards primarily blamed defendant.

Contrary to defendant’s claim, the jury did not have to “choose” between these versions. The jury may well have believed the truth lay somewhere in between—that the most reasonable

interpretation of the evidence as a whole was that all three were guilty. The three were generally together and apparently mutually cooperating before the crime, during the crime, and after the crime. Defendant had incriminating blood on his boots when arrested. The jury may have had some unanswered questions about exactly who did what, but no reasonable doubt that defendant was guilty of a heinous murder.

Whatever skepticism the jury might have had about parts of Edwards’s testimony, it could reasonably have rejected defendant’s claim that he slept through the murder, awoke to help dispose of the body, then went back to sleep. Accordingly, “we cannot conclude that [Edwards’s] testimony rendered either the capital conviction or the death sentence unreliable.” (People v. Majors (1998) 18 Cal.4th 385, 432 [75 Cal.Rptr.2d 684, 956 P.2d 1137].) Defendant also argues that allowing Edwards to testify violated his rights to effective cross-examination and to present a defense.

These arguments are primarily based on his claim, which the record does not support, that the plea agreement compelled Edwards to testify in a particular way. Defendant was permitted to cross-examine Edwards at length and effectively. Indeed, many of the reasons defendant now argues to doubt Edwards’s credibility were elicited on cross-examination. The court also fully permitted defendant to present a defense. Finally, defendant contends the appellate record is inadequate to determine this issue. The alleged missing record relates not to his case but to the severed prosecution against Edwards.

On February 10, 1988, the judge in Edwards’s case (not the one who presided over this trial) received a handwritten letter from Edwards requesting a new attorney. In response, the court held an in camera hearing with Edwards and his attorney. At that hearing, Edwards’s attorney stated that the problem involved deciding whether Edwards should accept the plea agreement. The court continued the matter for a further hearing on the morning of February 24, 1988. No hearing was held on that date, however.

The court’s minutes state, “Defense counsel reporting that defendant Edwards will be testifying against the co-defendant [i.e., defendant here], that there is no attorney-client conflict, and that there is no need for a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]), the matter is dropped from the calendar.” No reporter’s transcript exists for that proceeding. Edwards began testifying in this trial the same day.

Defendant asserts there must have been some hearing on February 24, 1988, involving Edwards, for which the reporter’s transcript is missing, and that the missing transcript would have been relevant to this issue. We disagree. The record indicates Edwards was not present in that courtroom that day, and the court held no hearing. It presents no reason to suspect anything happened other than that Edwards’s attorney informed the court— no doubt informally—that no hearing was needed, and the matter was dropped.

It presents no basis to suspect anything occurred relevant to the nature of the agreement between Edwards and the prosecution that was not otherwise on the record. b. Tape-recorded Conversation Involving Defendant While defendant was incarcerated awaiting trial, jail officials surreptitiously tape-recorded a conversation among defendant and his mother and sister in the jail visiting room. Over defense objection, the court admitted the recording.

Defendant argues the recording was an unreasonable search and seizure under the Fourth Amendment of the United States Constitution and that it violated title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520). Both contentions lack merit. (Lanza v. New York (1962) 370 U.S. 139 [82 S.Ct. 1218, 8 L.Ed.2d 384]; People v. Hines (1997) 15 Cal.4th 997, 1043 [64 Cal.Rptr.2d 594, 938 P.2d 388]; Donaldson v. Superior Court (1983) 35 Cal.3d 24, 28-30 [196 Cal.Rptr. 704, 672 P.2d 110]; People v.

Von Villas (1992) 11 Cal.App.4th 175, 223-225 [15 Cal.Rptr.2d 112].) As we summarized in Donaldson, “under settled federal precedent . . . , the secret monitoring and recording of unprivileged conversations in prisons, jails, and police stations did not constitute an unlawful search.” (Donaldson v. Superior Court, supra, 35 Cal.3d at p. 27.) Defendant argues the purpose of the recording was to gather evidence, not to protect institutional security. Whether he is correct makes no difference.

Although we found recordings of this kind unlawful under state law unless done to protect institutional security (De Lancie v. Superior Court (1982) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142]), federal law does not make that distinction. (E.g., Donaldson v. Superior Court, supra, 35 Cal.3d at pp. 27-30.) “In general, relevant evidence that is illegally obtained under California law is nonetheless admissible, so long as federal law does not bar its admission.” (People v. Hines, supra, 15 Cal.4th at p. 1043, citing Cal. Const., art.

I, § 28, subd. (d).) Accordingly, the trial court correctly refused to suppress the recording. {Hines, supra, at pp. 1043-1044.) Defendant also contends the evidence was irrelevant and should have been excluded as unduly prejudicial. He did not object on these grounds at trial, so he may not raise them on appeal. (People v. Champion (1995) 9 Cal.4th 879, 918 [39 Cal.Rptr.2d 547, 891 P.2d 93].) Indeed, when the trial court ruled on the search and seizure question, it specifically asked whether defendant was objecting on any other basis.

Defense counsel responded that he might make other objections later, but at the moment he objected solely on privacy grounds. The court then said, “Well, having heard no specific objections other than privacy grounds, I’ll hold any ruling on that. You’re not suggesting any further editing as far as I can tell" Defense counsel answered, “Not at the moment.” (Italics added.) Defendant made no other objection to the recording. Much of the conversation was, indeed, irrelevant or at least unhelpful to the prosecution. Defendant never admitted guilt.

As the trial court noted, “much of it is self-serving.” It estimated the tape contained “only about thirty seconds” that it would offer if it were the prosecution. Some of the tape was clearly relevant. Defendant made statements regarding where he was the night of the crime. He also claimed not to know whether he was in the car when Edwards and Osborne drove the victim away, contrary to his trial testimony that he was in the car. Defense counsel clearly made the tactical decision that if the jury heard any part of the conversation, it should hear it all.

That decision appears reasonable because, as the court noted, much of the conversation was self-serving. c. Uncharged Misconduct Evidence Defendant contends the court erred in permitting the jury to hear evidence of uncharged misconduct. As he recognizes, with one partial exception, he did not object to this evidence at trial; indeed, he elicited some of it himself. Accordingly, he cannot challenge its admissibility on appeal. (People v. Champion, supra, 9 Cal.4th at p. 918.) Defendant also contends his attorneys were ineffective for not objecting.

We have already stated the general principles regarding claims of ineffective assistance of counsel. “Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.” (People v. Hayes (1990) 52 Cal.3d 577, 621 [276 Cal.Rptr. 874, 802 P.2d 376].) “Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. ... A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.” (People v.

Kelly (1992) 1 Cal.4th 495, 520 [3 Cal.Rptr.2d 677, 822 P.2d 385].) As to each of defendant’s current contentions, “[t]he record in this case strongly suggests a reasonable explanation for the failure to object.” (Ibid.) First, defendant complains of certain testimony regarding thefts from an elderly woman for whom Edwards cared in Klamath Falls shortly before Middleton’s killing. While cross-examining Edwards, defense counsel elicited that Edwards took certain items when he and defendant left to drive to California. On redirect examination, Edwards testified that defendant also took something.

Defendant argues this latter testimony was impermissible character evidence. However, tactical reasons appear for both the cross-examination and the failure to object to the redirect examination. All of this testimony came from Edwards, a witness whose credibility the defense necessarily challenged. A major thrust of the defense was to try to show that Edwards was blaming defendant for his own and Osborne’s misdeeds. Eliciting testimony that Edwards stole in Oregon would tend to discredit him, which easily explains the defense cross-examination.

Once the defense questioned Edwards about the thefts, the prosecution was probably entitled to inquire further into the subject, making any objection meritless. But whether or not a valid objection was available, the defense might reasonably not have wanted to make it. No reason appears to believe Edwards would be more credible regarding the thefts than regarding the killing. Counsel had to realize that if the jury believed Edwards regarding • the killing, it. would convict defendant of the murder whether or not it heard anything about any thefts.

Counsel may have felt that the more Edwards blamed defendant, the less credible he would appear. Specifically, counsel could reasonably believe the benefit to the defense from the jury’s hearing Edwards once again blame defendant for his own misdeeds outweighed any risk that the jury would disbelieve Edwards regarding the killing but believe his testimony about the theft and then convict defendant of a capital crime because it thought he was a thief.

Second, defendant complains-about a witness’s “non-responsive answer concerning parole violation.” Ellen Howard, whom the trio visited after the killing, testified that she gave Osborne and Edwards, but not defendant, some methamphetamine. At one point, Osborne told her he wanted some more methamphetamine.

In response to a question, he said, “we’re parole violators from Oregon.” When she asked, “how did you violate?” he responded, “Just ... we got out.” Defense counsel interjected, “Could we have these specific as to who’s saying what?” The prosecutor said, “This is non-responsive.” The witness clarified that Osborne made these statements. The subject was then changed. Again, good reason appears for the defense not to object. Defense counsel made sure the jury understood that Osborne, not defendant, made the statement.

Howard did not testify that defendant was, in fact, a parole violator (no evidence suggested he was), but only that Osborne said “we” were. The jury had no reason to believe that the claim of being parole violators was real rather than a boast, or that Osborne included defendant in the statement. Because the defense was trying to portray Edwards and Osborne as the real killers who were cooperating to blame defendant, defense counsel could reasonably believe this testimony was helpful.

Counsel could reasonably think the jury was unlikely to believe that Edwards and Osborne committed the murder rather than defendant, but convict defendant of the crime anyway because Osborne told a third person “we” were parole violators. Third, defendant complains of Edwards’s testimony that shortly before the killing, at a different location in Weed, he saw that defendant “had this man pinned up in the comer talking about he’d take his truck.” Again, the defense had a good reason not to object to this rather innocuous testimony.

Later in the trial, the defense, called the alleged victim of this encounter, Andy Francis, as it's own witness. Francis testified that he never had any problem with defendant that night, and that defendant was “the most mellow” of the three. The defense could reasonably believe that the more bad things Edwards said about defendant the less credible he would be, especially when the alleged victim contradicted Edwards. Defense counsel cited this contradiction when arguing the case to the jury.

Fourth, Edwards testified without objection on direct examination and again on cross-examination that he, Osborne, and defendant had used “crank” (methamphetamine) at Howard’s house after the crime. Later, before Howard testified, defendant objected to her testifying about methamphetamine use. Noting the absence of an objection when Edwards testified on the same point, the court overruled the objection. Ultimately, Howard testified that Edwards and Osborne but, she believed, not defendant, used methamphetamine. Defendant himself testified he'did not use methamphetamine on that occasion.

Again, defense counsel could reasonably have chosen not to object to Edwards’s testimony. If the jury believed Edwards’s overall testimony, it would necessarily find defendant guilty. If it did not believe Edwards’s testimony that defendant committed the murder, it was unlikely to give much weight to his testimony about the methamphetamine use. Defendant has preserved the issue about Howard’s testimony (and only that issue), but, in light of Edwards’s testimony on the same subject, the court properly permitted Howard’s testimony. Her testimony was relevant to Edwards’s credibility.

Moreover, the ruling did not prejudice defendant. Howard’s actual testimony corroborated defendant, not Edwards, a point defense counsel exploited in argument to the jury. Defendant also contends the court failed to weigh the probative value of Howard’s testimony against its prejudicial effect. However, defendant did not object on this ground. (People v. Anderson (1990) 52 Cal.3d 453, 477 [276 Cal.Rptr. 356, 801 P.2d 1107].) In any event, the trial court “ ‘need not expressly weigh prejudice against probative value ... or even expressly state that [it] has done so . . . .’” (People v.

Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396, 801 P.2d 1107].) “The record as a whole shows the court was well aware of, and consistently performed, its duty ... to balance the probative value of evidence against any prejudicial effect.” (People v. Carpenter (1999) 21 Cal.4th 1016, 1053 [90 Cal.Rptr.2d 607, 988 P.2d 531].) In short, defendant could reasonably have believed it pointless to object to this evidence, all of which ultimately came from the mouths of Edwards or Osborne, the two he blamed for the murder. Defendant has not shown counsel acted incompetently.

For similar reasons, he has also failed to show prejudice. d. Adoptive Admissions Over objection, the court admitted testimony from two witnesses about statements that Edwards and, primarily, Osborne made shortly after the crime. Defendant contends the court erred. As an offer of proof, Candy Cobb testified outside the jury’s presence that defendant, whom she knew, and Edwards and Osborne, whom she had not previously met, visited her Vacaville home the afternoon of November 3, 1986. They left, then returned around 2:00 a.m. the following morning.

Defendant told Cobb “that they had gotten fucked up and that there was a man in a coma.” Cobb asked what had happened. Although she directed her questions to defendant, from that point on Osborne, and to a lesser extent, Edwards, did the talking. Defendant was sitting on a couch a few feet from her but said nothing further during this conversation. Osborne stated “that he had owed him money.” She asked defendant why they did not turn themselves in. Osborne and Edwards replied that they were not going to do so.

Osborne made various statements about what either “he” or “they” did, including perpetrating what she surmised was a robbery. Osborne said there were “no witnesses, they couldn’t pin that on him,” and that “he had come up from behind the guy.” Edwards said, “yes, that he had just bought tires and that they could get tire prints, that they were going to have to bum the car.” The court ruled that the statements either were not hearsay or were admissible as adoptive admissions, statements against penal interest, or impeachment. Cobb then testified about these statements in front of the jury.

Later, the prosecution made an offer of proof regarding similar testimony from defendant’s sister, Roslyn Walker. The court similarly mled her testimony admissible. Walker testified that defendant told her, “Sis, I have something to tell you.” Edwards said, “you shouldn’t tell her.” Defendant then said, “There is a man in a coma.” She asked where this man was, and defendant responded he did not know. Around this time, Candy Cobb entered the room.

Osborne said that “they owed him money,” that “it was two hundred dollars,” and that “he robbed the place.” He also said “something about him coming from behind the man and hitting him.” Edwards said “he was going to bum his car because of the tires.” “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid.

Code, § 1221.) Under this provision, “If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.” (People v.

Preston (1973) 9 Cal.3d 308, 313-314 [107 Cal.Rptr. 300, 508 P.2d 300]; see also People v. Silva (1988) 45 Cal.3d 604, 624 [247 Cal.Rptr. 573, 754 P.2d 1070].) “For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential.” (People v.

Fauber (1992) 2 Cal.4th 792, 852 [9 Cal.Rptr.2d 24, 831 P.2d 249].) “When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untme, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.” (Estate of Neilson (1962) 57 Cal.2d 733, 746 [22 Cal.Rptr. 1, 371 P.2d 745].) Defendant argues that to the extent Osborne said “they” did something, it was unclear whether he meant all three or merely himself and Edwards.

If the latter, the statements would not have accused defendant of anything. However, the circumstances support the inference that Osborne referred to all three of them. All three were present. Indeed, defendant spoke first, saying that they had gotten “fucked up and that there was a man in a coma.” Osborne spoke in response to Cobb’s asking defendant what had happened. Nothing in the circumstances suggests that Osborne was generally excluding defendant from his statements. If Osborne had referred only to himself and Edwards, one would expect defendant to have clarified that the statements did not include him.

The circumstances warranted presenting the evidence to the jury and letting the jury decide what weight to give it. “To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1011 [254 Cal.Rptr. 586, 766 P.2d 1].) The court correctly instructed the jury how to consider the evidence. (People v.

Medina (1990) 51 Cal.3d 870, 891 [274 Cal.Rptr. 849, 799 P.2d 1282].) Defendant argues that finding that these statements included him is inconsistent with arguing that Osborne’s statement to Howard, “we’re parole violators,” did not include him. The circumstances of the two conversations, however, were different. Nothing in Howard’s testimony suggested defendant was present when Osborne made the parole violator statement. By contrast, the statements to Walker and Cobb were made in defendant’s presence in response to questions asked of him.

To the extent Osborne and Edwards spoke in the singular, thus referring only to the speaker, the court admitted the statements either as nonhearsay, or as statements against penal interest, or as impeachment. Defendant does not challenge this ruling as to Osborne’s statements, which certainly seem to qualify as statements against penal interest (Evid. Code, § 1230), but he notes that Edwards was not “unavailable as a witness,” as Evidence Code

section 1230 requires. Edwards’s statement that defendant should not tell Walker what happened was not hearsay; it was not offered for the truth of the matter stated. (Evid. Code, § 1200.) His only other statement, referring to the tires and saying they should bum the car, was probably also not hearsay. In addition, it was a prior inconsistent statement. On cross-examination, defense counsel elicited from Edwards that he did not want to burn the car. Edwards said that was mainly Osborne’s idea.

Defendant also argues the court did not expressly weigh the probative value of this evidence against its prejudicial effect. However, defendant did not object on this ground and, as noted, the record reflects the court was aware of its duty. Moreover, no reason appears to have excluded the evidence on this basis. To the extent Osborne and Edwards were referring to themselves and excluding defendant, the statements were consistent with the defense theory that those two committed the crimes alone.

To the extent the conversation included defendant—which was for the jury to determine—the evidence was probative of guilt, and properly so. The evidence harmed the defense in the sense that it supported an inference of guilt, but it was not unduly prejudicial. Arguing to the contrary, defendant asserts that Osborne’s statements “had no probative value to corroborate Edwards’ courtroom testimony, since an accomplice’s testimony cannot be corroborated by the out-of-court statements of himself or another accomplice.” This assertion -does not aid defendant.

Although accomplice testimony must be corroborated to support a conviction (§ 1111), the corroboration requirement relates to the sufficiency, not admissibility, of evidence. e. Cross-examination Regarding Defendant’s Statement When defense counsel cross-examined Walker, he asked her whether defendant had also told her he “didn’t kill anyone.” She agreed that he did say that. The district attorney objected and requested a hearing outside the jury’s presence.

The court sustained the objection and directed the jury to “disregard the last remark and answer of the witness . ...” A hearing ensued outside the jury’s presence. At the hearing, Walker testified that defendant made the statement loud enough for Edwards and Osborne to hear as part of the same conversation. In light of this further testimony, the court ruled the statement admissible. (See Evid.

Code, § 356 [“Where part of [a] . . . conversation ... is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . .”].) In front of the jury, defense counsel resumed questioning Walker about what defendant had said. She testified that defendant had told her “he didn’t do nothing” loud enough for everyone to hear. The court did not specifically tell the jury that it could consider this testimony. Defendant argues the court prejudicially erred in not telling the jury it had changed its ruling and the jury could consider the testimony. We disagree.

The court did not change its ruling. When the witness first testified about the statement, no one had laid a proper foundation for its admission. Hence, the court properly sustained the objection subject to a further hearing, which it promptly held. When the witness testified further, and it became apparent the statement was admissible under Evidence Code

section 356, the court properly admitted it. Defense counsel then resumed questioning the witness in front of the jury. Without further objection, the witness recounted the statement in her own words and said that defendant told her “he didn’t do nothing.” Although the court had told the jury to disregard the earlier testimony, the jury heard nothing to prevent it from considering this testimony. No reason appears to believe the jury understood anything other than that it should not consider the earlier, but could consider the later, testimony.

If defense counsel had thought the jury might have misunderstood the situation to defendant’s detriment, they could easily have asked for an admonition to clarify any ambiguity. They did not, thus making the issue not cognizable on appeal. (People v. Terry (1970) 2 Cal.3d 362, 398 [85 Cal.Rptr. 409, 466 P.2d 961].) f. Bloodstain Evidence Brian Wraxall, a forensic serologist, testified without objection regarding his examination of the bloodstains found on defendant’s pants and boots.

He performed both electrophoretic and gamma marker (GM) blood analysis using an absorption inhibition method, also known as agglutination inhibition. Wraxall’s tests excluded defendant, Edwards, and Osborne as possible donors of the blood. The GM test of the blood on the pants was consistent with Middleton’s blood and that of 5.8 percent of the Caucasian population. Wraxall’s analysis of the blood on the boots, which apparently combined GM and electrophoretic tests, showed the blood was consistent with Middleton’s blood and that of about 0.5 percent of the Caucasian population.

The day after Wraxall testified, defendant moved to strike the testimony. He challenged the GM testing as not generally accepted in the scientific community. After hearing testimony from three experts, the court denied the motion. Defendant contends the court erred. The Attorney General first argues that the motion to strike came too late to preserve the issue for appeal. This question is close and difficult. As we have done on occasion in similar situations, we will assume the issue is cognizable and decide it on the merits. (See People v.

Bruner (1995) 9 Cal.4th 1178, 1183, fn. 5 [40 Cal.Rptr.2d 534, 892 P.2d 1277].) Defendant argues the prosecution did not show that GM testing was generally accepted in the relevant scientific community. (See People v.

Venegas (1998) 18 Cal.4th 47, 53 [74 Cal.Rptr.2d 262, 954 P.2d 525].) However, judicial decisions have now established the validity of this testing. “An important corollary of that rule, however, is that if a published appellate decision in a prior case has already upheld the admission of evidence based on such a showing, that decision becomes precedent for subsequent trials in the absence of evidence that the prevailing scientific opinion has materially changed.” (Ibid.) Two published California decisions have upheld GM agglutination inhibition testing: People v.

Yorba (1989) 209 Cal.App.3d 1017, 1024-1025 [257 Cal.Rptr. 641]; People v. Morganti (1996) 43 Cal.App.4th 643, 656-661 [50 Cal.Rptr.2d 837], (See also People v. Pride (1992) 3 Cal.4th 195, 241 [10 Cal.Rptr.2d 636, 833 P.2d 643], citing People v. Yorba, supra, 209 Cal.App.3d 1017, with apparent approval regarding GM testing of “dried bloodstains” (original italics) while expressing no opinion regarding such testing of semen stains under the particular facts.) No reason appears to overturn these decisions.

The trial of this case predated Yorba by about a year, but that circumstance does not cause us to doubt the scientific reliability of the testing. (See People v. Morris (1991) 53 Cal.3d 152, 207-208, fn. 9 [279 Cal.Rptr. 720, 807 P.2d 949].) Defendant also appears to claim that the prosecution failed to establish that “ ‘correct scientific procedures were used in the particular case.’ ” (People v. Venegas, supra, 18 Cal.4th at p. 78, quoting People v.

Kelly (1976) 17 Cal.3d 24, 30 [130 Cal.Rptr. 144, 549 P.2d 1240].) However, to the extent defendant makes this a distinct claim separate from the general scientific reliability claim, he has not preserved it for appeal. At trial, defendant claimed only that the GM testing, in general, was not accepted in the scientific community, not that Wraxall failed to apply the procedure correctly in this particular case. Accordingly, we conclude the court properly denied the motion to strike. g.

Photographs and Bloodstained Physical Evidence Defendant objected to the admission of photographs of the victim and crime scene as unduly prejudicial. The court sustained the objection under Evidence Code

section 352 to photographs of the victim while alive. The court admitted some autopsy photographs of the victim and excluded others.

As to the photographs it excluded, the court stated it was “not convinced that the probative value of these photos would outweigh any prejudicial quality.” In discussing another photograph, the court stated its “general disposition in pictures of the scene is, since it’s totally impossible at this stage of the proceedings to tell exactly what’s going to be important to any juror in assessing the information that’s presented, and knowing what points are going to be critical and not critical, that anything that reflects any of the physical arrangement of anything that was discovered at the location of the discovery of the body is normally going to be admissible . . . .” That photograph was later withdrawn, but the court overruled objections to other crime scene photographs.

It also overruled objections to photographs of the body in the bloodstained clothing, stating that the jury “may derive some type of significance from the location and quantity of blood that is apparent in these photographs. [¶] At this point, I’m not prepared to say that the [prejudice] outweighs the probative value.” Over objection, the court also admitted bloodstained physical evidence from the crime scene, including the victim’s clothes, the air pressure gauge, and some leaves and debris.

Defendant contends the court abused its discretion in admitting the photographs and physical exhibits. “The admission of photographs . . . lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory.” (People v. Crittenden (1994) 9 Cal.4th 83, 133 [36 Cal.Rptr.2d 474, 885 P.2d 887].) Here, the trial court did not abuse but carefully exercised its discretion. Moreover, the record clearly shows that it weighed the probative value of the evidence against any prejudicial effect throughout the trial. (Id. at pp. 135-136.) Citing People v.

Ford (1964) 60 Cal.2d 772 [36 Cal.Rptr. 620, 388 P.2d 892], defendant challenges what he calls the court’s “blanket ruling” admitting all photographs of the crime scene. In Ford, the trial court admitted anything it considered “material,” with no indication it even considered the question of prejudice. (Id. at p. 801.) The court here clearly understood its duty to consider prejudice. It did state its “general disposition” that crime scene photographs would “normally” be admissible. The statement was appropriate in this case. Two eyewitnesses to the events at the crime scene testified: Edwards and defendant.

The two gave detailed and sharply conflicting accounts of what occurred. The trial court correctly realized that physical evidence and photographs might be critical to the jury’s evaluation of the conflicting accounts. Under the circumstances, the court could reasonably find that the more assistance the jury received, the better. The fact that the exhibits involved blood was due to the crime, not the court’s rulings. As we have often noted, “ ‘ “murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant . . . ” (People v.

Carpenter (1997) 15 Cal.4th 312, 385 [63 Cal.Rptr.2d 1, 935 P.2d 708], quoting People v. Pierce (1979) 24 Cal.3d 199, 211 [155 Cal.Rptr. 657, 595 P.2d 91].) “As a rule, the prosecution in a criminal case involving charges of murder or other violent crimes is entitled to present evidence of the circumstances attending them even if it is grim. ‘Service on a murder trial jury is not entertainment; such duty is serious and onerous; by serving, the jurors are executing a primary and necessary duty as citizens.

Often the details of evidence are unpleasant, but adult finders of fact must face this duty calmly and undismayed.’ ” (People v. Osband (1996) 13 Cal.4th 622, 675 [55 Cal.Rptr.2d 26, 919 P.2d 640], quoting People v. Campbell (1965) 233 Cal.App.2d 38, 43 [43 Cal.Rptr. 237].) Defendant also complains that, before some of these rulings, the court did not view a videotape of the crime scene that he claims would have obviated the necessity of photographs. However, a court could reasonably conclude that a videotape might supplement but could not replace still photographs and physical exhibits. We find no error. h.

Use of a Mannequin Defendant argues the court erred in allowing the prosecution to use a mannequin to illustrate the victim’s stab wounds. However, he may not raise the issue on appeal because he did not object at trial. (People v. Medina (1995) 11 Cal.4th 694, 754 [47 Cal.Rptr.2d 165, 906 P.2d 2].) Defendant claims the mannequin inaccurately illustrated the wounds and might have confused the jury. If true, that might have provided a reason for defense counsel not to object. An objection might merely have resulted in the prosecution using a more accurate, less confusing mannequin.

Defense counsel might reasonably have believed that a confused jury would be less likely to find their client guilty beyond a reasonable doubt. In any event, an objection would have lacked merit. The pathologist testified that the mannequin showed the “approximate” angles of the knife wounds. Using the mannequin in this fashion was permissible. (People v. Medina, supra, 11 Cal.4th at pp. 753-754.) 4. Jury View of the Crime Scenes During the trial, the jury was taken to view some of the scenes relevant to the case.

While discussing procedures outside the jury’s presence, the court asked who would identify the correct sites and “tell the bus driver where to drive?” One of the defense attorneys stated, “Well, we have Jarrett” (the investigating officer).

The other defense attorney added, “Whom everybody trusts implicitly.” Later, defense counsel explained to the jury that “[t]he plan was that I think Officer Jarrett was going to go in a separate vehicle [with the jury], and all of us were going to meet . . . and then Officer Jarrett’s vehicle will lead us through.” The court offered to allow one or both of the defense attorneys to accompany Jarrett. Defense counsel declined, stating, “We implicitly trust Officer Jarrett.” Thereafter, Sergeant Jarrett accompanied the jury in the bus ride to the scenes.

Defendant argues the court erred in letting Sergeant Jarrett accompany the jury to the scenes. He speculates that Jarrett might have said something prejudicial to the jury on the bus. However, the defense did not object to the procedure; indeed, it suggested it. “Because defendant failed to object to any aspect of the jury view, he cannot raise further challenge on appeal.” (People v. Bolin (1998) 18 Cal.4th 297, 323 [75 Cal.Rptr.2d 412, 956 P.2d 374].) Defendant contends counsel acted incompetently. However, the record shows quite clearly that both defense attorneys trusted Jarrett.

We have no basis on which to conclude that this trust was misplaced. The record does not suggest that Jarrett was a zealous partisan. His testimony was, on the whole, an objective account of the investigation. In argument to the jury, the defense cited his testimony as helpful to the defense. Moreover, we have no basis on which to speculate that Jarrett said anything to the jury harmful to the defense to which he did not testify in court. 5.

Defendant’s Absence from Proceedings Defendant contends his statutory and constitutional rights to be present during the criminal proceedings were violated (see generally People v. Waidla, supra, 22 Cal.4th at pp. 741-743) when he was absent on the following occasions: a scheduled arraignment, a pretrial discussion regarding television coverage, the jury visit to the crime scenes, and two conferences outside the jury’s presence during trial in which the court and parties discussed jury instructions and exhibits to send to the jury.

The scheduled arraignment was postponed due to his absence and held later in his. presence. Defense counsel consented to defendant’s absence from the pretrial discussion. Defendant personally waived his presence at the crime scenes and trial conferences. Defendant’s presence at these proceedings would neither have contributed to the fairness of the procedure nor have affected the fullness of his opportunity to defend against the charges. (People v. Waidla, supra, 22 Cal.4th at p. 742.) Moreover, counsel validly waived defendant’s presence at the pretrial discussion.

Counsel may waive all but a few fundamental rights for a defendant. (In re Horton (1991) 54 Cal.3d 82, 95 [284 Cal.Rptr. 305, 813 P.2d 1335].) Any right to be present at a pretrial conference is not a fundamental right beyond counsel’s control. Regarding the other matters, even in a capital case, defendants may generally waive their right to be present at trial when evidence is not taken. (People v. Mayfield (1997) 14 Cal.4th 668, 738 [60 Cal.Rptr.2d 1, 928 P.2d 485].) This rule applies to discussions of legal matters and, generally, to a jury view of the crime scene.

Defendant argues that evidence was taken at the jury View of the scenes, thus making his presence nonwaivable. (§ 977, subd. (b)(1).) The record shows that at the specific direction of the court or defense counsel, Sergeant Jarrett pointed out a couple of matters to the jury. Assuming this makes the jury view a “portion[] of the trial when evidence is taken” (§ 977, subd. (b)(1)), it appears that technically defendant could not waive his statutory right to be present. (People v.

Mayfield, supra, 14 Cal.4th at p. 738.) However, because this nonwaivable right is statutory and not constitutional, error is reversible only if it is reasonably probable the result would have been more favorable to defendant absent the error. (Ibid.) Defendant “provides no sound basis to question the contemporaneous judgment of defense counsel, with which defendant then agreed, that defendant’s trial interests would be better served by not attending the jury view.

We therefore conclude that the error was not prejudicial.” (Id. at p. 739, original italics.) We pointed out in Mayfield that had the trial court followed the letter of the statute, and forced defendant to attend the jury view against his wishes, with all the “strict security precautions” his presence would have required, he might now be arguing that that ruling prejudiced him. (Ibid.) We expressed, and now express, no opinion on the question, but find no prejudice from the court’s doing what defendant thought best. 6.

Prosecutorial Misconduct Defendant contends that the prosecutor committed misconduct during the guilt phase. With exceptions noted below, he did not object to the alleged misconduct. Because “any harm could easily have been cured, the contentions are not cognizable on appeal.” (People v. Carpenter, supra, 15 Cal.4th at p. 396.) Defendant contends his attorneys were ineffective for not objecting.

However, competent counsel may often choose to forgo even a valid objection. “[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.” (People v.

Frierson (1991) 53 Cal.3d 730, 749 [280 Cal.Rptr. 440, 808 P.2d 1197].) Each of the instances in which defendant now claims his attorneys should have objected comes within this broad range of trial tactics that we may not second-guess. (Ibid.) Defendant argues his attorneys should have objected to various questions the prosecutor asked him during cross-examination as either argumentative or repetitive. We have reviewed the cross-examination.

Although the trial court might (or might not) have sustained an objection to some of the questions had the defense made one, we see no question that compelled competent counsel to object. Effective attorneys do not always make an objection merely because it might be successful, even during cross-examination of the client. They might reasonably consider how the client is holding up under the questioning and the jury’s reaction to it. Indeed, an attorney might welcome argumentative and repetitive questions if the client is doing well.

The jury might sympathize with or find credible a witness who successfully withstands such questioning. Defense counsel made many objections during trial, just not the ones defendant now urges. We do not find counsel ineffective for selectively choosing when to object. An additional word is in order concerning defendant’s complaint about repetitive questions.

Although a court should not, over objection, permit an attorney “to carry . . . witnesses with ceaseless reiteration through endless matters concerning which they had testified that they knew nothing” (Estate of Martin (1915) 170 Cal. 657, 669 [151 P. 138]), often some amount of repetition is the essence of effective cross-examination. “More latitude should be granted to a cross-examiner asking the same question more than once than is permitted the direct examiner.

One major purpose of cross-examination is to continue probing the same subject matter in an effort to get a witness possibly to modify his or her testimony. There is good reason, therefore, to permit the cross-examiner to ask a witness the same question more than once.” (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 1998) Method and Scope of Examination of Witnesses, § 27.15, pp. 440-441.) Defendant raises one matter about which defense counsel did object at trial. The prosecutor was beginning a line of questioning about what defendant had told a police officer after an earlier arrest.

Defendant had told the officer he remembered “discussing with him the fact that prison was a possibility for the theft.” Then the prosecutor asked, “And you said didn’t make any difference. Might as well drink a lot and parties—” At this point, defendant objected, and a hearing was held outside the presence of the jury. Ultimately, the court precluded the prosecutor from pursuing that line of questioning. When the jury returned, the court told it, “And ladies and gentlemen, unless your memories are a lot better than mine, you probably do not recall the last question that occurred before you left.

But I will admonish you to disregard it just in case you do.” Defendant complains the admonition was inadequate. Defense counsel, who were present and failed to request a stronger one, apparently disagreed. The jury heard the objection at the time of the question and knew a hearing was held regarding it, so it understood from the outset that the propriety of the question was in doubt. The later admonition confirmed that the jury should not consider the question. We therefore have no basis on which to believe it gave the question any weight.

Moreover, because the questioning was terminated early, what the jury actually heard was rather innocuous. We see no reason to doubt the adequacy of the admonition or find prejudice. Defendant also complains of comments the prosecutor made during argument to the jury. We have reviewed the comments to which the defense failed to object and find that an admonition could have cured any impropriety. In response to the claim of ineffective assistance of counsel, we also find no comment that would have compelled competent counsel to object. Defendant did object to a portion of the prosecutor’s reply argument.

In response to the defense argument that the jury should find defendant guilty only of being an accessory, the prosecutor argued that sometimes juries might “compromise, they take some minor offense like littering, or overtime parking, or accessory to murder, and they say, well, we have got to do something. . . . [¶] I would urge you not to do that. This is a first degree murder case. ...

If any crime whatsoever was committed, those are the crimes that were committed, nothing less.” Outside the jury’s presence, defendant objected to the implication that being an accessory to murder is comparable to a minor offense like illegal parking. He moved for a mistrial and requested at least a cautionary instruction. The court denied a mistrial. It said it would give a cautionary, instruction -if needed in the future but found it not necessary at that time. We find no abuse of the court’s discretion.

Although any comparison of littering and overtime parking to being an accessory to murder was obviously hyperbolic, we see no reasonable likelihood the jury would consider the offenses to be comparable or believe that finding defendant guilty of being an accessory to murder would be similar to finding him guilty of littering. (People v. Clair (1992) 2 Cal.4th 629, 663 [7 Cal.Rptr.2d 564, 828 P.2d 705].) 7.

Instructional Issues Defendant argues that the evidence disclosed two distinct acts of robbery: (1) the initial robbery at Rambo’s Truck Stop; and (2) the later taking of money from Middleton’s wallet in the car. He argues the prosecution either had to elect which act it was relying on or the court had to require the jury to agree unanimously on one specific act. (CALJIC No. 17.01.) Otherwise, he contends, some of the jurors might have found him guilty of the first of these acts but not the second, and other jurors might have found him guilty of the second but not the first.

In that event, the jury would have reached no unanimous verdict that he was guilty of any specific robbery at all. (See generally People v. Diedrich (1982) 31 Cal.3d 263, 280-283 [182 Cal.Rptr. 354, 643 P.2d 971].) It does not appear that defendant asked the court to give CALJIC No. 17.01, but he may still raise the issue on appeal. Even absent a request, the court should give the instruction “where the circumstances of the case so dictate.” (People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8 [261 Cal.Rptr. 348, 111 P.2d 121].) The circumstances of this case, however, do not dictate giving the instruction.

Even assuming that two distinct robberies occurred rather than one continuous robbery, “there was no evidence here from which the jury could have found defendant was guilty of’ the robbery in the car but not the earlier one. (People v. Carrera, supra, 49 Cal.3d at pp. 311-312.) There was no danger some jurors would find defendant committed the Rambo’s Truck Stop robbery but not the one in the car, while others would find he committed the robbery in the car but not the earlier one. The parties never distinguished between the two acts.

The defense was the same as to both: defendant was asleep in the backseat of the car and did not participate in any act of robbery. By contrast, in People v. Diedrich, supra, 31 Cal.3d 263, which found prejudicial error in not requiring unanimity, the facts showed two distinct acts of bribery to which the defendant offered different defenses: a “simple denial” of one act and an “ ‘explanation]’ ” of the other. {Id. at p. 283.) Accordingly, the Diedrich jury could have divided on which bribery he committed, with the result that there was no unanimous verdict as to any act. There was no such possibility here.

Defendant argues to the contrary. He argues that because no eyewitness testified about the robbery at the truck stop and Edwards’s testimony about the robbery in the car was “uncorroborated,” some jurors might have found him guilty of only the first and other jurors of only the second. We disagree. Although defendant’s factual argument has some merit in one respect, overall, the evidence does not support it. It was conceivable that some, or even all, of the jurors might have had a.reasonable doubt that the robbery in the car occurred. They might have considered it a possible embellishment on Edwards’s part.

These jurors might have found defendant guilty based on the truck stop robbery but not the car robbery. But the reverse is not true. If the jury believed Edwards, defendant was clearly guilty of the truck stop robbery, which the physical evidence shows occurred. It is inconceivable that a juror would believe Edwards’s testimony that defendant committed the robbery in the car but somehow find he did not commit the truck stop robbery. Unlike People v.

Diedrich, supra, 31 Cal.3d at page 283, this is “a case where the jury’s verdict implies that it did not believe the only defense offered.” Defendant reiterates a few instructional contentions we have already rejected. The court did not have “to either ‘specify malice as an element of felony murder’ or require unanimity as to theory” of first degree murder. (.People v. Carpenter, supra, 15 Cal.4th at p. 394.) The standard instructions on false testimony and circumstantial evidence do not reduce the prosecution’s burden of proof. (People v. Crittenden, supra, 9 Cal.4th at p. 144; People v.

Wilson (1992) 3 Cal.4th 926, 942-943 [13 Cal.Rptr.2d 259, 838 P.2d 1212]; People v. Beardslee (1991) 53 Cal.3d 68, 94-95 [279 Cal.Rptr. 276, 806 P.2d 1311].) Contrary to defendant’s argument, nothing in People v. Rivers (1993) 20 Cal.App.4th 1040 [25 Cal.Rptr.2d 602] casts doubt on our upholding the standard instruction on false testimony. Even if the language “probability of truth” standing alone would be “somewhat suspect” (Rivers, supra, at p. 1046) when applied to a prosecution witness, it does not stand alone.

The trial court correctly instructed the jury on the reasonable doubt standard and told it to “consider all the instructions as a whole and ... to regard each in the light of all the others.” The instructions as a whole correctly instructed the jury on the prosecution’s burden of proof. (People v.

Brown (1996) 42 Cal.App.4th 1493, 1502-1503 [50 Cal.Rptr.2d 407].) Finally, the court instructed the jury that if it “is not satisfied beyond a reasonable doubt that the defendant is guilty of [the charged offenses], and it unanimously so finds, it may convict him of any lesser offense if the jury is convinced beyond a reasonable doubt that he is guilty of such lesser offense.” Defendant argues the instruction violates both the federal Constitution and the rule of People v.

Kurtzman (1988) 46 Cal.3d 322, 325 [250 Cal.Rptr. 244, 758 P.2d 572], that the court may not preclude “a jury from considering lesser offenses during its deliberations.” The instruction violates neither the Constitution nor the Kurtzman rule. (People v.

Dennis (1998) 17 Cal.4th 468, 535-537 [71 Cal.Rptr.2d 680, 950 P.2d 1035].) Defendant argues that in cases like Dennis, we have “appeared to retreat from Kurtzman,” noting that we found “error (albeit harmless) in Kurtzman itself.” However, in Kurtzman, the trial court told the jury it had to agree unanimously on the greater offense “before considering” the lesser offense. (People v. Kurtzman, supra, 46 Cal.3d at p. 328.) We also described other then-standard instructions as potentially confusing and ambiguous. (Id. at p. 336.) The court here did not give these instructions.

Similarly, defendant relies heavily on United States v. Jackson (9th Cir. 1984) 726 F.2d 1466, 1469, 103 A.L.R.Fed. 871, which held that a court should not, over defense objection, “re

[…]