THE PEOPLE, Plaintiff and Respondent, v. DANIEL STEVEN JENKINS, Defendant and Appellant, 22 Cal. 4th 900

Opinion GEORGE, C. J. Following the guilt phase of a capital trial, in which defendant was represented by two defense counsel, a jury found defendant Daniel Steven Jenkins guilty, among other charges, of the first degree murder of and conspiracy to murder Thomas Williams (Pen. Code, §§ 182, 187), and of the attempted murder of George Carpenter (§§ 187, 664).

The jury found true the special circumstance allegation that Williams was a peace officer who was killed intentionally in retaliation for the performance of his official duties. (§ 190.2, subd. (a)(7).) At the penalty phase, in which defendant primarily represented himself, the jury fixed the penalty at death. The trial court denied defendant’s motion for new trial and for modification of the verdict, and imposed a sentence of death. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) We conclude that the judgment should be affirmed in its entirety. I. Facts A.

Guilt Phase Evidence 1. Prosecution case The prosecution’s evidence demonstrated that defendant planned and committed the crimes at issue in this proceeding, involving the attempted murder of George Carpenter and the conspiracy to murder and actual murder of Los Angeles Police Department Detective Thomas Williams, because in a trial for robbery Carpenter (as the robbery victim) was the principal prosecution witness against defendant and Williams was the investigating officer.

The robbery of Carpenter occurred in North Hollywood in October 1984, while Carpenter and another man were en route to deposit the day’s business receipts. Carpenter supplied the police with a license number of the automobile in which the two men who had robbed him were driving, and that vehicle was traced to defendant. Defendant admitted his involvement to one of his criminal cohorts but declared his innocence to Detective Williams. Carpenter positively identified defendant, both to Williams and again at the preliminary hearing, as one of the two assailants. a.

Attempted murder of George Carpenter Defendant made two attempts to have Carpenter tilled. First, he hired Jeffrey Bryant and Todd Shaw to till Carpenter, but called off the attempt when Shaw failed to follow his precise instructions. Jeffrey Bryant, testifying under a grant of immunity, recounted that defendant commented, “no witness, no case.” On July 4, 1985, at defendant’s behest, Anthony Bryant shot Carpenter, while defendant and Jeffrey Bryant established an alibi for defendant. The prosecution’s evidence established that Carpenter was dining in a restaurant when a man shot him in the head, torso, and legs.

After multiple surgeries, Carpenter was released from the hospital and fled the area. Jeffrey testified that he had heard Anthony admit shooting Carpenter. Jeffrey also testified that he observed defendant pay Anthony for the shooting, that he, Jeffrey, had disposed of the stolen automobile used in the shooting, and that defendant had disposed of the weapon given by defendant to Anthony to perform the shooting.

Another witness, an acquaintance of defendant’s named Elihue Broomfield, testified that defendant told him he had hired men to shoot Carpenter in a Hollywood bar, but that despite multiple gunshot wounds, Carpenter had survived. The prosecution also introduced telephone company records establishing contact between defendant, Shaw, and Anthony and Jeffrey Bryant prior to the shooting. b. Murder of Detective Williams Detective Williams was killed in a spray of gunfire in front of his son’s daycare center in the early evening of October 31, 1985.

Defendant (along with codefendants Duane Moody, Ruben Moss, Voltaire Williams, David Bentley, and Reecy Cooper) was charged with the murder of Detective Williams and with conspiracy to murder Williams. The evidence regarding defendant’s involvement in the conspiracy and the murder of Detective Williams came primarily from the testimony of immunized witnesses—David Bentley, Jeffrey Bryant, Aladran Hunter, and Tyrone Hicks.

Their testimony, in addition to testimony from persons who witnessed the shooting, or to whom defendant made incriminating statements, or who were involved in the disposal of the murder weapon, as well as ballistics evidence and telephone records, established that defendant directed various plans for others to kill Williams, and ultimately that defendant himself killed Williams. Defendant solicited Jeffrey Bryant to murder Williams, telling him that he wished to prevent Williams’s testimony at the Carpenter robbery trial.

Defendant engaged in some planning activity with Bryant, but when Bryant found out Williams was not a security guard, as defendant had declared, but instead was a police officer, Bryant announced he would not participate. On October 24, 1985, codefendant Voltaire Williams solicited Aladran Hunter to perform the murder, for the announced purpose of preventing the detective’s testimony in court. On October 25, 1985, Voltaire drove with Hunter to defendant’s home. Voltaire entered the residence and returned with a weapon.

Voltaire got into an automobile identified by a witness to the shooting of the detective as being similar to the vehicle from which the shots were fired. Hunter followed Voltaire to a location a few blocks past a school and was instructed by Voltaire to wait for an orange-and-white Toyota pickup track with a camper shell on the back. Voltaire instructed Hunter to drive by the pickup truck and shoot the intended victim in the head after the latter, whom he described, had picked up his child from the school. Voltaire stated he needed to get instructions from defendant regarding when the victim would arrive.

Voltaire then retrieved the weapon from his automobile and gave it to Hunter. Hunter found himself unable to shoot the victim when he arrived. Hunter met Voltaire later in the evening, informing him that he had not carried out the shooting and observing that he thought the intended victim was a police officer and not a security guard. Two persons who lived near the Faith Baptist Church School in Canoga Park, where the shooting of Detective Williams occurred, testified that on October 25, 1985, they observed codefendants Moody and Moss in an automobile parked near the school.

A third man seated in the rear of the vehicle may have been defendant. Defendant also approached David Bentley two or three weeks before Halloween in 1985, for assistance in finding a contract killer. Bentley solicited Tyrone Hicks, who conferred with Moss, Bentley, and defendant regarding terms. Defendant directed Hicks to come to his home. Two or three days before Halloween in 1985, Moss, Cooper, and Bentley picked up Hicks, informing him they were going to show him what he was supposed to do. When the men arrived at defendant’s home, Hicks was introduced to defendant as the driver.

Defendant went with Bentley to a lookout point and instructed him to look for a small orange Toyota or Datsun truck with a camper shell on it, stating that the man in the truck was the person he wanted to have killed, and that Bentley was to contact Moss when Bentley saw the truck and inform him of the direction the truck was headed. Bentley waited 20 minutes, did not see the truck, and received no response when he activated Moss’s pager. In the meantime, Moss had driven Hicks and Cooper to the church school, where he gave them instructions regarding the murder.

While they waited, Moss stated that previous attempts on the victim’s life had failed, in one case because the gunman had lost his nerve. Hicks observed the orange-and-white truck arrive at the school, but it departed before the plan could be executed. Defendant later berated Moss, and complained that now the victim would be able to testify against him the following day. Moss assured him they would kill the victim before then. On the way home, Bentley informed Hicks that it was improbable that defendant would pay him more than a few hundred dollars for his participation in the crime.

Hicks announced his reluctance to participate further. An acquaintance of Hicks’s recalled that Hicks had said to him that he was part of a plan to shoot a person near a school, that (as Hicks had testified) he had been picked up in a limousine and had seen the victim and the cars that were to be used, but that he had gotten scared. Additionally, Hicks’s girlfriend recalled that Hicks had told her the plan was to kill a police officer, and that he had been shown where the officer picked up his son after school.

Hicks told her he was supposed to be the driver, but that when the victim arrived from an unexpected direction, they abandoned the plan. Telephone records disclosed prolific telephone contact between the homes, residences, and pager numbers of Bentley, Moss, Cooper, Moody, and Voltaire Williams in the week preceding October 31, 1985. When defendant’s briefcase subsequently was seized from his sister’s home, it contained notations of the names and telephone numbers of Hicks, Moody, and Moss, as well as Voltaire Williams’s telephone number and the names Tyrone and Reecy.

The prosecution’s evidence established that defendant ultimately took matters into his own hands. As noted, in October 1985, defendant was on trial for the robbery of Carpenter, and Detective Williams, as investigating officer, sat at counsel table during the trial. Defendant paid his friend Steve Ballow a nominal sum to testify in his behalf on October 30, 1985, and to provide defendant with a false alibi at the trial. Defendant explained to Ballow that he had not committed the robbery but had lent his car to a cousin who had committed the offense.

He was upset about the trial and said he wished the police officer were dead. Ballow observed that Cooper, Moody, and Moss accompanied defendant to and from court, and Moody and Moss were detailed to drive Ballow home. Elihue Broomfield, an acquaintance of defendant’s from many years before, was at the courthouse on October 31, 1985, and happened to observe defendant’s trial. Defendant approached him and invited him to go home with him during the lunch break.

Defendant told Broomfield that he had not committed the robbery and that he had been set up by Detective Williams and Carpenter, but that defendant’s car had been used in the robbery. Defendant stated he would not tolerate being set up by a police officer and would not incur a conviction without securing revenge. Defendant said he would “get” the officer and would have someone armed with a weapon “get” Detective Williams that evening. He said he had had Williams followed and knew his routine. He showed Broomfield a weapon that appeared to be an Uzi and said it fired 10 to 20 rounds per second in rapid succession.

He said he had more than one contract killer to do the job. Broomfield subsequently identified the murder weapon as similar to the gun that defendant showed him. While they were at defendant’s home, defendant made a telephone call, during which Broomfield overheard defendant say that everybody had to be together at 1600 hours or “it” would not work. Over lunch, defendant said he could not bear to be in jail while the man who had set him up would be at a picnic enjoying life. He said he would eliminate him.

Upon their return to the San Fernando courthouse, Broomfield overheard defendant on the phone complaining that someone could not be located, and stating that he and others had to be at his home at a certain time and that “it” had to occur about 4:00 o’clock. Broomfield went to testify in another case around 3:00 or 3:30 that afternoon, and then he and defendant left the courthouse together. Telephone records corroborated Broomfield’s testimony regarding defendant’s telephone contacts.

Detective Williams signed his son out of the Faith Baptist Church School at 5:40 p.m. and was gunned down as he and his son approached their parked vehicle—an orange pickup truck with a camper shell. Williams was hit by eight bullets, two of which proved fatal. His truck also was riddled with bullets, as were nearby walls and even the interior of the school structure. A woman who was present picking up her son from the school shortly before 6:00 p.m. on October 31, 1985, heard the gunfire. The boy reported that it sounded like a machine gun.

The mother and child took cover, but eventually emerged to see Detective Williams slumped against his vehicle with his son weeping nearby. Other witnesses heard the gunfire and observed the victim’s body slumped against the truck. The police received the first call reporting the killing at 5:44 p.m. Various witnesses saw a grayish automobile go up and down the street in front of the school several times at approximately 5:30 p.m. that evening. One of these witnesses heard the gunfire and saw the same vehicle come up the street and rapidly accelerate to 60 or 65 miles per hour.

The brother of this witness approached the vehicle to advise the driver that his headlights were not on. The witness was not certain whether the driver—apparently the sole occupant—was African-American, Hispanic, or White, though he reported to the police that the driver was White. A person on the grounds of the Faith Baptist School on the evening of the murder heard what he thought were firecrackers exploding and saw an Oldsmobile, possibly white, speeding down the street in front of the property with its lights off.

A husband and wife driving near the school after 5:30 p.m. on October 31 saw a light-colored full-size automobile, possibly a Chevrolet or Oldsmobile, speeding away at between 45 and 60 miles per hour. When they arrived at the school, they observed Detective Williams slumped against his truck, dead. The woman thought the vehicle she had seen speeding away resembled a photograph of the automobile identified as the one defendant had been using with Broomfield that same day. This automobile was a two-door blue-and-white Oldsmobile that had been stolen in Sepulveda on October 22, 1985.

The automobile had been parked for an extended period before October 31, 1985, in a residential neighborhood in Canoga Park. A resident noted the license number and testified that the automobile was parked on the street on the morning of the murder, but that when she returned from work around 5:00 p.m., it was gone. When the automobile was recovered (after a tip from codefendant Moody) on November 7, 1985, the ledge of the driver’s door was covered in gunshot residue of the type that the murder weapon emitted profusely. The front part of the automobile also contained nine expended shell casings.

Further evidence recovered in the period following the crime was offered to prove defendant’s culpability for the shooting. Defendant announced to David Bentley on the evening of October 31, 1985, that he “got down hisself and . . . took care of that ass hisself [sic].” When Bentley asked what he meant, defendant said Bentley would see it on the news that evening. At defendant’s request, Bentley went to defendant’s home about 8:00 p.m.

Defendant appeared excited and repeated that he had “taken care of that ass.” While Bentley worked to repair Moody’s automobile, he heard defendant tell Moody he was surprised at how many shots the Uzi had fired with one light pull of the trigger. Defendant stated he had test-fired the Uzi in his backyard earlier that day. Defendant repeated that he “got that ass myself. I had to do it. I mean. I had to do it myself. Guys won’t take care of business. I had to take care of this . . . myself.” Ali Woodson received a telephone call from his friend Moody between 6:00 p.m. and 8:00 p.m. on October 31, 1985.

A couple of hours later, Moody arrived at.Woodson’s apartment. He seemed disturbed and said he wanted to drop off some skates. He was carrying a large green duffel bag, which Woodson directed him to place in the closet. This testimony was confirmed by Mrs. Woodson. A few days later, Moody’s girlfriend telephoned Ali Woodson and told him to take everything out of the duffel bag except the Uzi and that the police were on the way. Woodson examined the duffel bag, which contained several weapons, including a modified Mac M-10 assault pistol and a clip for the pistol.

He turned the duffel bag and gun over to the police. Ballistics evidence indicated that the pistol was the murder weapon. Arvie Carroll, who had been convicted of burglary and escape, became acquainted with defendant while both men were incarcerated in the Los Angeles County jail. Defendant told him that he had shot Detective Williams several times and then sped away to a Kmart store and talked to a salesperson in order to establish an alibi. Defendant told Carroll that he then returned home, where he gave Moody the murder weapon. Defendant announced that he was going to place the blame for the shooting on Moody.

Defendant explained that he had shot Detective Williams because Williams had arrested him. He described the details of the shooting, noting how the body had jerked while he fired, and stating that his car stalled while he was trying to get away, so he “pumped some more bullets into his white ass,” knowing that the officer already was dead. He also stated he would have killed the officer’s son if he had come into the line of fire, because the child probably would grow up to be a police officer like his father. Carroll stated that defendant smiled and laughed as he related his story.

David Bentley testified that he spoke with Reecy Cooper about the crime while they were incarcerated together, and that Cooper said that he was in the car and at the house, because he was supposed to be the shooter, but that he became frightened and did not want to do the shooting.

In anticipation of a possible alibi defense mentioned by several witnesses, involving defendant’s presence at a Kmart store soon after the shooting, a police officer testified that he had driven the route from the San Fernando courthouse, to defendant’s home on Cantara street, to the Faith Baptist Church School in Canoga Park, and found that defendant could have committed the murder and still arrived at the Kmart at the time indicated by potential alibi witnesses.

Telephone records confirmed that there was telephone contact between the telephone numbers of defendant, Moss, Cooper, Bentley, Hicks, and Moody during the afternoon and evening of October 31, 1985. The briefcase seized from defendant’s sister’s home contained a piece of paper bearing Elihue Broomfield’s telephone number. 2. Defense case Defendant presented evidence to support his claim that codefendant Moody had killed Detective Williams. Moody was implicated in the Carpenter robbery and also had been under investigation by Detective Williams in connection with another crime.

Prosecution evidence tied Moody to the murder weapon, and defense evidence suggested that police investigation had focused on Moody. A person who met Moody in October 1985 stated that Moody had said at the time that he was an alibi witness in a friend’s robbery trial, that an officer was a key witness in the case, and that Moody had expressed his own resolve to “get” the officer. Another witness testified that Moody had stated he had committed the Carpenter robbery, and that defendant had not been involved.

The defense also presented evidence indicating that Moody would have been able to get to the murder scene on October 31, 1985, in time to commit the murder. Defendant also presented evidence suggesting that because he was aware of police surveillance during the period leading up to the homicide, and because he was resigned to going to prison for the Carpenter robbery and was aware that Detective Williams was not a significant witness in the Carpenter robbery trial, he would not have undertaken to murder Detective Williams.

Police records indicated defendant was under surveillance from late August 1985 until September 19, 1985, and that surveillance resumed on October 31, 1985, after the homicide. Defendant presented evidence that police records were faulty and that the surveillance may have continued between September 19, 1995, and the time of the homicide. In addition, many friends, neighbors, and relatives of defendant’s related either that they observed apparent surveillance of defendant or that defendant had expressed awareness of and great concern regarding police surveillance that continued until the time of the homicide.

The lawyer who represented defendant in the Carpenter robbery trial testified that he did not anticipate that Detective Williams would testify against his client; that although defendant denied responsibility for the robbery, he seemed resigned to being convicted and going to prison for it; and that defendant appeared surprised when counsel informed defendant that Detective Williams had been killed. Defendant also presented alibi evidence.

Although David Bentley was called as a prosecution witness, his testimony included a recollection that he and defendant had gone to a gas station on the evening of October 31, 1985, to work on Moody’s automobile. He recalled that he and gas station employees amused themselves by “burning rubber” with their automobiles at the rear of the station. Defendant called other witnesses to confirm the event, although they were not precise about the date it had occurred. Defendant also presented evidence in support of the theory that the police had acted dishonestly in preparing the case against him.

There were discrepancies in police records regarding when and where the police surveillance of defendant had taken place. Defendant noted that statements and descriptions offered by witnesses changed in some respects after contact with police interviewers. Canale, a witness relied upon by the prosecution early in the case—but not at trial—added incriminating details to his account of inculpatory statements made by Moody after various contacts with law enforcement officers.

Canale also made inconsistent statements about whether he had warned the police about Moody’s statements regarding the forthcoming crime before the crime occurred. Telephone records indicated Canale had telephoned the Norwalk sheriff’s station twice on October 24, remaining on the telephone for 12 and 21 minutes, respectively. The officers named by Canale denied being informed by Canale about his conversation with Moody. Canale was a regular informant who was interested in receiving a reward or other benefit in return for his information.

In addition, three of the witnesses who testified that they had seen an automobile, such as the one used by the shooter, near the scene of the crime immediately before and after the shooting, originally told the police that the driver involved in the shooting was White or Hispanic. Defendant is African-American. A dermatologist testified that he was unaware of any ointment or solution that could be applied to an African-American person’s face to make it appear light or whiter. Further evidence called into question the reliability of certain prosecution witnesses.

Sidney Woodson testified he had known Jeffrey Bryant for years, that Bryant was a cocaine dealer, and that Woodson had seen Bryant use cocaine five to 10 times a day. Bryant also was charged with several robberies in 1987, and his probation officer was of the opinion he should be sentenced to state prison if found guilty. The probation officer recalled that Bryant had denied responsibility for the 1987 robberies, but Bryant testified that he believed he had admitted responsibility for one robbery.

Elihue Broomfield’s brother-in-law testified that Broomfield had an extremely poor reputation for honesty in the community. Broomfield had been on probation for felony hit and run in 1979, and had substantially delayed paying the restitution ordered in that case. Prosecution witness Steven Ballow made inconsistent statements to the police concerning his ride to the courthouse with defendant on the morning of October 31, 1985. Bentley admitted being a drug dealer who sold controlled substances to Hicks. Hicks admitted extensive drug abuse around the time of the crimes.

Hunter admitted being an alcoholic and using cocaine during the relevant period. Hunter, Hicks, Bentley, and Bryant all faced sentencing for criminal offenses when they testified for the prosecution. Defendant presented evidence that prosecution witness Arvie Carroll may have had a motive to injure defendant. Defendant’s brother testified that during defendant’s pretrial incarceration in the county jail, someone with a name like Carroll telephoned him to say that defendant wanted the brother to bring $200 to the jail and put it in Carroll’s jail account.

Defendant told his brother he had never made any such request. Another witness, an inmate in the county jail, testified that Arvie Carroll told him that he was going to try to get defendant’s brother to put money in Carroll’s jail account. The witness later heard defendant and Carroll in a heated argument regarding Carroll’s efforts to get money from defendant’s brother. Defendant presented the testimony of an expert that called into question the reliability of eyewitness identification testimony in general.

He also presented evidence that cast doubt on details of the prosecution case, such as evidence that although a prosecution expert believed the shooter had held the automatic pistol in his right hand, defendant was left-handed.

The jury found defendant guilty of murder and found true an allegation that in the commission of the crime, a principal was armed with a firearm. (§ 12022, subd. (a).) The jury also found true the special circumstance allegation that Williams was a peace officer who intentionally was killed in retaliation for the performance of his official duties. (§ 190.2, subd. (a)(7).) The jury found not true the allegations that Williams was a witness to a crime who was intentionally killed in retaliation for his testimony (§ 190.2, subd. (a)(10)), and that defendant intentionally killed the victim while lying in wait. (§ 190.2, subd. (a)(15).) The jury also found defendant guilty of conspiracy to commit the murder of Thomas Williams. (§§ 182, 187.) The jury also found defendant guilty of the attempted murder of George Carpenter. (§§ 187, 664.) B: Penally Phase Evidence 1.

Prosecution case The prosecution presented evidence that defendant had been convicted of two counts of receiving stolen property and was placed on probation on condition he spend one year in the county jail. Defendant also had been convicted of assault by means of force likely to produce great bodily injury on Horace Monroe, Jr. Defendant pleaded guilty to this offense and was placed on probation, on condition he spend one year in the county jail, to be served concurrently with the term for receiving stolen property.

The prosecution presented evidence regarding the circumstances surrounding the assault conviction. Horace Monroe, Jr., testified that he was entering Ms automobile on November 22, 1978, when defendant approached the automobile in the company of a man whom the witness knew as Ali. Defendant and Ali were armed. Defendant told Monroe to get out of the veMcle and told Ali to shoot Mm. Defendant and Ali beat Monroe, causing injuries requiring 30 stitches to Ms forehead.

It was disclosed on cross-examination that defendant earlier had interrupted Monroe while the latter was removing the wheels from defendant’s Corvette. Monroe desisted when the police arrived, and defendant conferred with the officers. Monroe also was impeached with inconsistent statements he made at an earlier proceeding regarding whether defendant had been armed during the assault. Horace Monroe, Sr., testified that on the day following the assault on his son, Horace Monroe, Jr., he was told that defendant was across the street from the older man’s home, armed. When Mr.

Monroe, Sr., approached Ms truck intending to retrieve a shovel with which to defend himself, defendant opened fire on Mr. Monroe, Sr., shooting him in the shoulder. Horace Monroe, Jr., and Mrs. Monroe, Sr., confirmed seeing defendant and a companion, whom they knew as Ali, firing on Mr. Monroe, Sr. Although the witnesses stated the attack was unprovoked and that they had had no contact with defendant before he began firing, they were impeached with inconsistent testimony at earlier proceedings in which they stated that they had exchanged harsh words with defendant before the assault.

There was also evidence of inconsistencies regarding which of the assailants was armed, how many assailants there were, and whether they fired repeatedly after hitting Mr. Monroe, Sr. There was also evidence that defendant’s companion, Ali Bryant, was known as a violent person. 2. Defense case Defendant presented evidence in mitigation to demonstrate his background and his reputation in the community. He was born in Kansas and was separated from his siblings when his mother brought him to Los Angeles to live with her. His mother had severe mental health problems.

When she gave birth to a daughter, defendant’s mother was unable to care for Mm as a consequence of her mental disability, and defendant was placed in foster care for a period of years. Defendant was a loving son. He was unaware of the identity of Ms father. When he left foster care, defendant’s grandmother cared for Mm and for his mother. Defendant worshipped his grandmother and was emotionally devastated when she died. He had offered to donate Ms liver to her, but it was too late. Her death occurred one month before the murder of Detective Williams.

Many witnesses testified regarding defendant’s excellent reputation as a kind and responsible father and as a friend to children in his neighborhood and community. He was a godfather to a friend’s child, and showed great concern when he visited the child in the hospital at birth and during an illness. Witnesses related additional acts of kindness to other persons. Defendant was an entrepreneur, a responsible businessman who established a candy store with a video arcade and a limousine business.

A friend of defendant’s testified that on two occasions defendant acted as a Good Samaritan, once by stopping to offer assistance to a person injured in an automobile accident, and once by stopping to assist a person who had been shot. The jury returned a verdict of death. II. Discussion A. Guilt Phase Issues 1. Claim of error in denying motion for change of venue Before trial, defendant moved for a change of venue on the ground that his constitutional right to a fair trial had been prejudiced by pervasive pretrial publicity.

In support of the motion, he offered copies of 93 newspaper articles describing the crimes, his arrest, the victim’s funeral, comments by the local police chief regarding the crimes, and developments in the police investigation of the case. He also referred to ongoing radio and television coverage of the case, without specifying whether or to what extent this coverage was prejudicial. The trial court denied the motion, stating “the bulk of the clippings that you allude to were in the papers in the very beginning ... or right immediately thereafter.

I would agree that now we will be seeing some more in the papers about the case. [¶] However, I don’t think that from what you have submitted that it rises to a reasonable likelihood that the defendants cannot receive a fair and impartial trial in Van Nuys. I don’t think simply the showing of the publications rises to that level. [¶] Obviously, during the course of jury selection the defense is free to renew this type of a motion if we see that in fact we are not able to obtain a fair and impartial jury. [¶] So the motion at this time will be denied.” The motion was not renewed at the time of jury selection.

Defendant contends on appeal that the denial of his motion for change of venue constituted a denial of his state and federal constitutional rights to a fair trial and to be tried by a fair and impartial jury. He relies in large part upon the evidence of negative pretrial newspaper publicity that was the basis for his motion in the trial court. He also contends, without citation to the record, that 61 of 152 potential jurors stated they had prior knowledge of the case. He also asserts that three persons selected for jury service stated on their juror questionnaires that they had some familiarity with the case.

He states that only one of these was questioned by defense counsel regarding her exposure to publicity. We do not find any error in the trial court’s order denying the motion for change of venue.

Section 1033, subdivision (a), requires a trial court to grant a motion for change of venue if “there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” We have explained that “[t]he phrase ‘reasonable likelihood’ in this context ‘means something less than “more probable than not,” ’ and ‘something more than merely “possible.” ’ [Citation.] In ruling on such a motion, as to which defendant bears the burden of proof, the trial court considers as factors the gravity and nature of the crime, the extent and nature of the publicity, the size and nature of the community, the status of the victim, and the status of the accused.” (People v.

Proctor (1992) 4 Cal.4th 499, 523 [15 Cal.Rptr.2d 340, 842 P.2d 1100].) On appeal, “ ‘the defendant must show both that the court erred in denying the change of venue motion, i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e., that it [is] reasonably likely that a fair trial was not in fact had.’ ” (People v.

Proctor, supra, 4 Cal.4th at p. 523, italics in the original.) On appeal, we undertake a de novo review of the five controlling factors noted above (as demonstrated by the evidence before the trial court at the time of the motion), in order to resolve the first question—whether the trial court erred.

Further, “[w]ith regard to the second part of the showing, in order to determine whether pretrial publicity had a prejudicial effect on the jury, we also examine the voir dire of the jurors.” (Id. at p. 524.) The crime was of the gravest order, involving the murder of a police officer, and although this circumstance weighs in favor of a change of venue (People v. Daniels (1991) 52 Cal.3d 815, 852 [277 Cal.Rptr. 122, 802 P.2d 906]), it does not by itself require a change of venue. (See People v.

Cummings (1993) 4 Cal.4th 1233, 1276 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Defendant’s motion for change of venue was made upon the basis of assertedly prejudicial and extensive publicity. Although his motion and argument to the court referred to television and radio coverage, all the examples of prejudicial publicity to which he refers on appeal were disseminated through the print medium.

He alludes to articles extolling the victim and explaining that he was murdered in connection with the prosecution of another of defendant’s crimes, and to articles sympathetically depicting the victim’s family at the victim’s funeral, relating the opinion of investigating officers that defendant was the leader of a conspiracy to kill the victim and that he had made attempts to commit the crime before accomplishing it, references to confessions of codefendants, and former Los Angeles Police Chief Gates’s comment that defendant was a heartless killer. He also contends his race was made obvious through photographs.

Although extensive and sometimes editorial, the bulk of this coverage dated from the time the crime was committed, some two years before the hearing on the motion for change of venue, and all the articles dated from at least 10 months prior to the motion. Such a lapse of time weighs against a change of venue. (People v. Proctor, supra, 4 Cal.4th at p. 525, and cases cited; see also People v.

Pride (1992) 3 Cal.4th 195, 225 [10 Cal.Rptr.2d 636, 833 P.2d 643] [the “passage of time weighs heavily against a change of venue”].) The trial occurred in Van Nuys in Los Angeles County, an exceptionally populous area. (See People v. Cummings, supra, 4 Cal.4th at p. 1276 [involving a trial held in Los Angeles County’s San Fernando Valley for the murder of a police officer]; see also People v.

Jennings (1991) 53 Cal.3d 334, 363 [279 Cal.Rptr. 780, 807 P.2d 1009] [“ ‘The larger the local population, the more likely it is that preconceptions about the case have not become imbedded in the public consciousness.’ ”].) Although the victim was a police officer, apart from that status neither the victim nor defendant was prominent—or notorious—in the community. (See People v.

Cummings, supra, 4 Cal.4th at p. 1276 [similar facts].) The density of the population in the area, the lapse of time between the conclusion of the publicity and the hearing on the motion, and the lack of prominence of the victim and defendant lead us to conclude that the trial court did not err in denying the motion for change of venue. In addition, with respect to the issue of prejudice, the record does not establish a reasonable likelihood that defendant did not in fact receive a fair trial.

There was no indication that the pretrial publicity had a prejudicial impact upon the jurors’ ability to remain fair and impartial. Only three jurors who served on defendant’s jury indicated in their juror questionnaires that they had heard of the case prior to trial. The first had no information other than that the names of the defendants were recognizable, that he had no idea of the source of this information, and that he knew so little about the case that the publicity would have no effect on his views regarding the matter.

The second juror was aware that the case involved a police officer who had been killed as he picked up his son from school, but the juror believed this information would have no effect on his views regarding the case. The third juror was uncertain whether she had heard of the case, because it had been so long since her exposure to any publicity, but she believed it involved a man picking up his son from school. She also stated the publicity would have no effect on her view of the case.

On voir dire, this juror also stated that she vaguely recalled reading in a newspaper at the time of the crime that it involved a man who was shot while picking up his child from school. She did not recall any other facts and stated that the publicity would have no impact upon her deliberations. According to defendant, no other seated juror was questioned on voir dire regarding publicity. We recall that there is “no presumption of a deprivation of due process of law arising] from juror exposure to publicity concerning the case.” (People v.

Proctor, supra, 4 Cal.4th at p. 527.) Defendant fails to point to any evidence establishing that the three jurors noted above who served on his case were exposed to or recalled any prejudicial element of the pretrial publicity. Their exposure to publicity was minimal and harmless. As we have observed: “Vague recollections of news reports by a few jurors do not compel a change of venue.” (People v.

Howard (1992) 1 Cal.4th 1132, 1169 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) Minimal exposure well before the commencement of trial, by a small number of jurors who reliably report that their exposure will not color their view of the case (see People v. Proctor, supra, 4 Cal.4th at p. 527), does not establish a reasonable likelihood that defendant did not in fact receive a fair trial. Defendant also contends it was error to transfer the case from downtown Los Angeles to the San Fernando Valley and to retain it for trial there.

The case initially was assigned to a downtown court, and over defendant’s objection was transferred for trial to Van Nuys, where the crime had occurred. When he moved for change of venue, defendant also made an alternative request that the matter be returned for trial to a downtown court. Defendant contends on appeal that he was less likely to receive a fair trial in the San Fernando Valley, where the crime occurred, the population density was less than it was downtown, and fewer members of the community shared his ethnic background.

The same considerations apply to an intracounty transfer as apply to a motion for change of venue to another county, and because we have found no error in the trial court’s denial of the motion for change of venue, we find no error in the assignment of the case for trial in Van Nuys. (.People v. Cummings, supra, 4 Cal.4th at p. 1276, fn. 17.) Defendant appears to contend that the trial court should have granted his motion for change of venue because of certain developments during voir dire.

He alleges that during voir dire “there was much discussion of appellant’s case, and dissemination of false and damaging rumors. The spread and impact of such rumors, and the trial court’s refusal to adequately voir dire concerning those rumors . . . provides further evidence that the community of Van Nuys was itself tainted by both pretrial publicity and more informal sources of prejudicial ‘information,’ and that a change of venue was required.” Any claim that such a motion should have been granted based upon developments at voir dire was waived by defendant.

The trial court denied the motion for change of venue before the commencement of jury selection based upon proffered evidence of pretrial publicity, subject to renewal of the motion in the event voir dire established any further basis for questioning whether defendant would receive a fair trial in the county. Trial counsel did not renew the motion. Because trial counsel failed to cite occurrences at voir dire as the basis for a renewed motion for change of venue, he afforded the trial court no opportunity to grant the relief that defendant now contends should have been accorded him.

Thus we conclude that defendant’s claim has been waived to the extent it is based upon occurrences at voir dire. (See People v. Bolin (1988) 18 Cal.4th 297, 312 [75 Cal.Rptr.2d 412, 956 P.2d 374].) 2. Severance of trials Defendant contends that the prosecutor obtained a severance of defendant’s (and codefendant Moss’

s) trial from that of codefendants Duane Moody, Voltaire Williams, and Reecy Cooper for the impermissible purpose of obtaining a jury composed of White persons. Defendant contends the prosecutor’s improper purpose is demonstrated by the prosecutor’s statement that he wanted the trial to be conducted in Van Nuys, and not in Central Los Angeles, in the context of the court’s indication that a transfer to Van Nuys was possible only if the case was broken into “more manageable units.” Defendant concedes he did not oppose the prosecutor’s severance motion on the ground asserted on appeal.

In fact, defense counsel agreed prior to trial that severance was appropriate, although counsel stated he would oppose any transfer of the case to Van Nuys. The court agreed with defense counsel that the question of the transfer to the Van Nuys court was a separate matter that would be heard on another date. Similarly, at trial defense counsel conceded that severance was appropriate and that the question of the transfer of the trial to Van Nuys was not at issue in the context of the severance motion. Accordingly, any claim regarding the prosecutor’s motivation in moving for severance was waived. (See People v.

Williams (1997) 16 Cal.4th 153, 254 [66 Cal.Rptr.2d 123, 940 P.2d 710] [claim of prosecutorial misconduct generally is waived if defendant does not object below]; People v. Hawkins (1995) 10 Cal.4th 920, 940 [42 Cal.Rptr.2d 636, 897 P.2d 574] [defendant who fails to move to sever counts waives claim on appeal]; People v.

Mitcham (1992) 1 Cal.4th 1027, 1048 [5 Cal.Rptr.2d 230, 824 P.2d 1277] [defendant waives claim that court erred in denying codefendant’s severance motion when defendant did not join in the motion].) In any event, the record discloses that the prosecutor was motivated by a desire to sever the case in which the prosecution sought the death penalty (involving defendant and Moss) from the case in which the death penalty was not being sought (involving the other defendants) and to avoid an unmanageable trial involving too many defendants, that the prosecutor wanted to try both cases in Van Nuys because this was the location in which the crime was committed, and that he disavowed any ulterior purpose. 3.

Severance of counts Defendant contends the trial court erred in denying his motion to sever the trial of count 3, alleging the attempted murder of George Carpenter, from the trial of counts 1 and 2, alleging murder and conspiracy to murder Detective Thomas Williams. All of these offenses belonged to the same class of crimes, so that joinder was appropriate pursuant to

section 954 unless a clear showing of potential prejudice was made. (People v.

Bradford (1997) 15 Cal.4th 1229, 1315 [65 Cal.Rptr.2d 145, 939 P.2d 259].) We review the trial court’s ruling for abuse of discretion, which will be found “when the trial .court’s ruling ‘ “falls outside the bounds of reason.” ’ ” (Ibid.) Depending upon the particular circumstances of each case, a “ ‘[r]efusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spill-over” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.’ ” (Ibid.) Not all of these considerations are of equal weight: “ ‘[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code

section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled.’ [Citations.] Cross-admissibility suffices to negate prejudice, but it is not essential for that purpose.” (People v. Bradford, supra, at pp. 1315-1316; see also People v.

Memro (1995) 11 Cal.4th 786, 850-851 [47 Cal.Rptr.2d 219, 905 P.2d 1305] [denial of severance should be sustained if other crimes evidence is cross-admissible, with possible exception if joinder is so grossly unfair as to deny defendant due process].) Evidence that defendant attempted to hire a hit man to kill George Carpenter prior to Carpenter’s anticipated testimony against defendant at his ongoing trial for robbing Carpenter would have been admissible at a separate trial charging defendant with conspiracy to murder Detective Williams to prevent Williams from testifying at the same trial.

Evidence in each case supported the inference that defendant acted for the same motive and with the same intent as in the other case—to kill witnesses in order to prevent them from testifying against defendant at the ongoing robbery trial. (See People v.

Arias (1996) 13 Cal.4th 92, 127-128 [51 Cal.Rptr.2d 770, 913 P.2d 980] [evidence defendant kidnapped and robbed one victim in order to obtain the means of avoiding arrest for a prior murder was cross-admissible; evidence regarding the murder supplied evidence of motive for the robbery kidnapping, which in turn indicated consciousness of guilt for committing the murder]; People v.

Cummings, supra, 4 Cal.4th at p. 1284 [no error in denying severance; evidence regarding robberies was cross-admissible to show motive for murder, because the motive (avoiding arrest) was circumstantial evidence of premeditation and deliberation, both of which were elements of the murder charge]; People v.

Price (1991) 1 Cal.4th 324, 388 [3 Cal.Rptr.2d 106, 821 P.2d 610] [no error in denying severance; evidence that one of the victims was killed on the orders of a prison gang to which the defendant belonged, and that the other victim was killed in an attempt to acquire firearms to carry out gang activities, was cross-admissible to show motive]; People v.

Daly (1992) 8 Cal.App.4th 47, 56 [10 Cal.Rptr.2d 21] [no error in denying severance; evidence of robberies was relevant to show motive and intent with respect to attempted murder, because the evidence showed the attempted murder was committed to avoid the defendant’s return to prison for robberies he had committed, and evidence of attempted murders was cross-admissible to establish consciousness of guilt as to the robberies].) There is no support in the record for defendant’s contention that the charge that defendant attempted to murder George Carpenter was not brought in good faith, but was filed merely to “shore up” the capital charges.

In addition, defendant has not demonstrated that the evidence underlying one of the offenses was significantly more inflammatory than the evidence in the other, or that evidence of guilt was so much stronger in one than the other that joinder was grossly unfair. (See People v.

Memro, supra, 11 Cal.4th at p. 851.) Contrary to defendant’s contention, the denial of defendant’s severance motion did not constitute a violation of the Eighth or Fourteenth Amendment to the United States Constitution; no ground exists to suppose the denial of severance deprived defendant of a reliable determination of guilt or caused a trial that was fundamentally unfair.

We reject defendant’s contention that he was deprived of the ability to demonstrate at the hearing on the severance motion that the evidence of the common motive for the attempted murder of Carpenter and the conspiracy to murder Detective Williams was very weak because of the prosecutor’s failure to provide timely discovery regarding witness Broomfield at the preliminary hearing.

The hearing on severance occurred 10 months after the preliminary hearing, and defendant had ample time to discover evidence sufficient to demonstrate that the evidence of common motive was unreliable, or that the evidence of defendant’s responsibility for the attempted murder of Carpenter was weak. In any event, defendant did not make this claim at the hearing on the severance motion; in fact he stated he would not attack the credibility of Broomfield.

He suggested that it would have been poor defense tactics to attempt to impeach the witness at the preliminary hearing, and that he preferred to reserve the defense for trial. Thus this claim is waived on appeal. (See People v.

Memro, supra, 11 Cal.4th 786, 851.) Defendant also contends that “there was a due process violation based on [prosecutorial] misconduct in fabricating evidence to support an otherwise unavailable joinder of cases.” This claim is based upon the contention that the police had fabricated a police report from one Donald Sutton relating defendant’s plan to murder Carpenter, and offered it at the preliminary hearing. The weakness of the Sutton evidence—which was not presented by the People at trial—was brought to the trial court’s attention at the hearing on the severance motion.

The circumstance that this particular evidence was weak did not make joinder unavailable, and the claim that the police fabricated the evidence is unconvincing. (See claim No. 17, post; see also claim No. 5, post.) 4. Delay in discovery Defendant contends that the trial court erred in refusing to set aside the information, exclude the testimony of Arvie Carroll, or impose any other effective sanction for the prosecution’s failure to disclose to the defense before the preliminary hearing that the prosecution possessed evidence that defendant had made inculpatory statements to jailhouse informant Arvie Carroll.

Before the preliminary hearing, Carroll, a person incarcerated with defendant in the county jail, informed the prosecution that defendant had admitted to Carroll that defendant had killed Detective Williams. The prosecution did not inform the defense of this statement until approximately two months after the preliminary hearing. Defendant made an unsuccessful motion to set aside the information or bar the testimony of Carroll at trial, or for some other appropriate sanction against the prosecution for its delay in complying with the trial court’s discovery order.

Defendant contends that the trial court’s refusal to impose a sanction constituted a violation of his Sixth and Fourteenth Amendment rights to due process of law and to confront the witnesses against him. He asserts a violation of parallel provisions of the California Constitution. As we have stated, “[i]t is defendant’s burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.” (People v. Pinholster (1992) 1 Cal.4th 865, 941 [4 Cal.Rptr.2d 765, 824 P.2d 571].) Defendant fails to demonstrate prejudice.

He contends he was prejudiced because he was unable to examine Carroll at the preliminary hearing or to interview witnesses regarding the credibility of Carroll’s statement. He contends the prosecution gained a tactical advantage by shielding Carroll from examination at the preliminary hearing regarding defendant’s inculpatory statement and Carroll’s possible status as a government agent. He contends he thereby was deprived of an opportunity to develop an affirmative defense. The contention is unpersuasive.

Defendant had ample time—one and a half years—after learning of Carroll’s statement to the prosecution to prepare to challenge the evidence and develop any affirmative defense. Defendant’s claim that had he known of Carroll’s statement prior to the preliminary hearing, he would have called Carroll as a witness at that hearing and obtained evidence to discredit him and to support a defense that defendant was being framed is entirely speculative.

In any event, as noted, defendant had ample opportunity in the extended period between the disclosure of Carroll’s statement and the trial to gather evidence in support of such a claim. Defendant’s contention also is premised upon the assumption that a limitation on a defendant’s ability to discover evidence and to develop a defense at the preliminary hearing necessarily is reversible error. Such error, however, at the preliminary hearing is not reversible on appeal in the absence of a showing of prejudice at trial. (People v.

Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941] [holding that irregularities at the preliminary hearing that “are not jurisdictional in the fundamental sense” require reversal on appeal only if the defendant can demonstrate that he or she “was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination”].) At trial, defendant was able to confront and cross-examine Carroll, having had ample opportunity to investigate the basis for the witness’s testimony and any affirmative defense suggested by it.

The delay in disclosure did not implicate defendant’s due process right to be informed of material evidence favorable to the accused (see Brady v. Maryland (1963) 373 U.S. 83, 87 [83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215]; see also United States v. Bagley (1985) 473 U.S. 667, 678 [105 S.Ct. 3375, 3381-3382, 87 L.Ed.2d 481]); he was informed of the evidence and had ample time to investigate before trial. Moreover, the evidence in the prosecution’s possession was not favorable to the accused.

Finally, defendant fails to support his contention that the trial court was required to impose the sanctions of dismissal or exclusion of evidence, or at least to impose a special jury instruction, because the prosecution allegedly had committed a willful violation of a discovery order.

The cases cited by defendant recognize that courts have broad discretion in determining the appropriate sanction for discovery abuse, and recognize that sanctions ranging from dismissal to the giving of special jury instructions may be required in order to ensure that the defendant receives a fair trial, particularly when potentially favorable evidence has been suppressed. (See, e.g., People v. Zamora (1980) 28 Cal.3d 88, 99 [167 Cal.Rptr. 573, 615 P.2d 1361]; People v.

Caldwell (1991) 230 Cal.App.3d Supp. 1, 5 [282 Cal.Rptr. 272] [reversing an order dismissing a complaint for discovery violations in the absence of a showing of prejudice].) Defendant cites no case, and our research has disclosed none, establishing that the prosecutor’s pretrial delay—whether willful or not—in disclosing inculpatory evidence to the defendant requires a particular sanction as a matter of due process, or that failure to impose a sanction for a period of delay that occurred long before trial requires reversal of a conviction in the absence of prejudice to the defendant at trial.

We note that the record does not support defendant’s contention that the trial court did nothing to protect him from violation of the court’s discovery order. At the hearing on the motion to set aside the information, at which the prosecutor asserted that concern for Carroll’s safety led to the delay in disclosure, the trial court determined that defendant had not been prejudiced by the delay in discovery, but warned the prosecutor not to make any further unilateral decisions regarding compliance with the court’s discovery order and threatened sanctions if the court’s warning were not heeded.

In sum, no constitutional violation or other error has been shown. 5. Failure to disclose evidence Defendant contends the prosecution violated his right to due process of law by failing to disclose information regarding an alleged informant system in the Los Angeles County jail that assertedly encouraged inmates to seek or fabricate confessions from defendants in notorious cases such as his. Defendant relies upon the rule that due process of law requires that the prosecution disclose material exculpatory evidence to an accused (see Brady v.

Maryland, supra, 373 U.S. at p. 87 [83 S.Ct. at pp. 1196-1197]; see also United States v. Bagley, supra, 473 U.S. at p. 678 [105 S.Ct. at pp. 3381-3392]), including “ ‘favorable evidence known to . . . others acting on the government’s behalf ....’” (In re Brown (1998) 17 Cal.4th 873, 879 [72 Cal.Rptr.2d 698, 952 P.2d 715].) He contends the undisclosed evidence was material and exculpatory because it would have provided a strong basis for impeachment of prosecution witnesses.

Defendant’s contention is premised upon his assertion that such a system existed at the time of his incarceration in the Los Angeles County jail. In support, defendant offers a Los Angeles Grand Jury Report from 1989-1990. This report is not part of the record on appeal, however, and “[a]s we have emphasized in the past, our review on direct appeal is limited to the appellate record.” (People v.

Barnett (1998) 17 Cal.4th 1044, 1183 [74 Cal.Rptr.2d 121, 954 P.2d 384].) As we have done in the past, “[b]ecause defendant’s claim is dependent upon evidence and matters not reflected in the record on appeal, we decline to consider it at this juncture.” (Ibid.) Defendant asks that we take judicial notice of the grand jury report. We deny the request, because it is “in contravention of the general rule that an appellate court generally is not the forum in which to develop an additional factual record . . . (People v. Peevy (1998) 17 Cal.4th 1184, 1207 [73 Cal.Rptr.2d 865, 953 P.2d 1212]; see also People v.

Stoll (1989) 49 Cal.3d 1136, 1144, fn. 5 [265 Cal.Rptr. 111, 783 P.2d 698].) The circumstance that we granted a request to take judicial notice of the same report in People v. Gonzalez (1990) 51 Cal.3d 1179 [275 Cal.Rptr. 729, 800 P.2d 1159] is unavailing. (See id. at p. 1259, fn. 54.) In that case we granted judicial notice in connection with the defendant’s petition for writ of habeas corpus. A habeas corpus proceeding, of course, appropriately may develop a record beyond the record on appeal. (See People v.

Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Defendant asserts, based upon the record on appeal, that the informants who testified against him offered unreliable testimony, that details of their statements could have been garnered from news reports and additional sources other than defendant, and that defendant complained during trial that he was subject to harassment by jail officials during his pretrial custody.

These claims, even if accepted as true, do not demonstrate that there was a system within the Los Angeles County jail of encouraging inmates to recount fabricated confessions or that defendant was the victim of such a system. Defendant is incorrect in suggesting that the record on appeal demonstrates that detectives investigating the crime purposefully placed inmate informants near defendant in an effort to secure incriminating statements; defendant’s own citations to the record reveal no such evidence.

Under these circumstances, defendant has failed to establish that the prosecution was in possession of material exculpatory evidence that it failed to disclose to the defense, and we must reject his claim. 6. Discovery related to police activities Defendant contends that the trial court erred in refusing to grant discovery of certain evidence, and that the prosecution erred in failing to disclose it. He contends this error deprived him of his constitutional right to due process of law.

The defendant generally is entitled to discovery of information that will assist in his defense or be useful for impeachment or cross-examination of adverse witnesses. (People v. Memro (1985) 38 Cal.3d 658, 677 [214 Cal.Rptr. 832, 700 P.2d 446].) A motion for discovery must describe the information sought with some specificity and provide a plausible justification for disclosure. (People v. McPeters (1992) 2 Cal.4th 1148, 1171 [9 Cal.Rptr.2d 834, 832 P.2d 146].) The court’s ruling on a discovery motion is subject to review for abuse of discretion. (People v.

Ashmus (1991) 54 Cal.3d 932, 979 [2 Cal.Rptr.2d 112, 820 P.2d 214].) Under the due process clause of the federal Constitution, the government has the obligation to disclose to the defendant evidence in its possession that is favorable to the accused and material to the issues of guilt or punishment. (Strickler v. Greene (1999) 527 U.S. 263, 280-282 [119 S.Ct. 1936, 1948, 144 L.Ed.2d 286); Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57 [107 S.Ct. 989, 1001, 94 L.Ed.2d 40] [applying due process analysis in the context of court’s denial of discovery]; People v.

Marshall (1996) 13 Cal.4th 799, 840-843 [55 Cal.Rptr.2d 347, 919 P.2d 1280] [same].) Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. (Pennsylvania v. Ritchie, supra, 480 U.S. at p. 57 [107 S.Ct. at p. 1001]; In re Sassounian (1995) 9 Cal.4th 535, 543-544, & fn. 5 [37 Cal.Rptr.2d 446, 887 P.2d 527], overruling broader statement of the standard in People v.

Morris (1988) 46 Cal.3d 1, 30, fn. 14 [249 Cal.Rptr. 119, 756 P.2d 843], upon which defendant relies.) Defendant complains that the trial court refused to grant discovery of photographs of police officers who were involved in surveilling him prior to October 31, 1985, and of photographs of the vehicles used in the police surveillance. He asserts that such photographs could have been shown to neighbors of defendant and other witnesses for the purpose of identification.

Defendant sought to demonstrate that police surveillance lasted longer than the police had admitted, thereby suggesting defendant would not have engaged in the charged crimes while he knew he was under surveillance. As respondent points out, the prosecution offered to make the surveillance officers available so that witnesses could view them in person. Thus, defendant had no further need for photographs of the officers. The court also acted within its discretion in determining that defendant had not shown sufficient cause to warrant discovery of photographs of the surveillance vehicles.

As the court stated, the defense witnesses who testified in support of the discovery motion regarding the surveillance of defendant had little or no independent recollection of the vehicles defendant had told them were following him, so the utility of photographs of the surveillance vehicles for defendant’s purposes was doubtful. The court also observed that it might be unduly suggestive to show photographs of the vehicles to witnesses who had no independent recollection of them.

Further, we note that the court denied the discovery motion without prejudice, stating that if defendant had additional evidence, the court would reconsider the matter. Defense counsel stated he probably would put defendant on the stand to supply the needed foundation for the discovery request, but he never did so. Finally, the evidence was not material, such that its loss deprived defendant of due process of law. Defendant has not demonstrated that the prosecution had in its possession evidence that was favorable to him and material to the issues of guilt or punishment. (See Pennsylvania v.

Ritchie, supra, 480 U.S. at p. 57 [107 S.Ct. at p. 1001].) There is no reasonable probability a different result would have occurred in the proceeding had the evidence been disclosed to the defense (ibid.)—the evidence was not such as “ ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” (Strickler v.

Greene, supra, 527 U.S. at p. 290 [119 S.Ct at p. 1952].) Defendant was able to introduce evidence in support of his theory that the police surveillance had extended until the time of the Williams murder, and it would be entirely speculative to conclude that photographs of surveillance vehicles would have affected the verdict either by corroborating defense witnesses or by leading to potential exculpatory evidence.

Defendant also contends the trial court erred in denying his request for discovery of memoranda written by Los Angeles Police Chief Gates and a lieutenant in the police department regarding an internal affairs investigation of Officers Pesante, Slack, and Riscens in connection with the alleged statement of Donald Sutton to Officer Pesante that defendant intended to kill Carpenter. As respondent notes, the People did provide defendant with the police department’s written report on the internal affairs investigation that was the basis upon which Chief Gates and the lieutenant based their memoranda.

The trial court properly reviewed the disputed memoranda in camera to weigh the People’s claim of privilege against defendant’s asserted need for the information (see People v. Webb (1993) 6 Cal.4th 494, 518 [24 Cal.Rptr.2d 779, 862 P.2d 779]), and determined that nothing contained in the memoranda would be material to the defense. Our review of the documents confirms the court’s conclusion. The court’s refusal to grant discovery was within its discretion, and no due process violation has been shown.

Defendant next contends the trial court erred in quashing a subpoena duces tecum for copies of manuals or other records concerning the operation of the county jail module in which defendant was confined. He sought these records to rebut the prosecutor’s contention that its delay in disclosing jailhouse informant Carroll’s statement implicating defendant until after the preliminary hearing, was reasonable because of concerns that defendant would retaliate against Carroll as long as Carroll was housed in the county jail.

We observe that although the court quashed the subpoena, it examined the module itself and concluded that the prosecution’s security concerns were reasonable. Without examining the merits of the court’s decision with respect to discovery, we conclude that any error in denying discovery was harmless because the requested evidence went to the issue of delay in disclosing Carroll’s statement. (See People v. Clark (1992) 3 Cal.4th 41, 134 [10 Cal.Rptr.2d 554, 833 P.2d 561] [defendant must demonstrate prejudice to prevail on claim of discovery error].) We have determined that the delay was nonprejudicial.

No due process violation appears, because the evidence was not material; there is no reasonable probability a different result would have occurred in the proceeding, had the evidence been disclosed to the defense. Defendant also contends the court erred in denying his request for discovery of all cases that Detective Williams had investigated, or in which he had made an arrest, in the year before he was murdered. We observe that the trial court granted the request to the extent that it ordered disclosure of the names of persons who had made threats against Williams.

Defendant’s theory was that a person investigated or arrested by Williams may have borne a grudge against the officer and thus been responsible for the murder of the officer. Defendant noted that some eyewitnesses to the shooting of Detective Williams had described the assailant as White or Hispanic, whereas defendant is African-American. He contended that evidence of a White or Hispanic suspect in one of Williams’s cases who bore a grudge against the officer—if such a person existed—would add weight to his defense.

At the hearing, the prosecution, through the Los Angeles City Attorney, resisted discovery on the grounds that defendant had made an inadequate showing and that the request would impose an inordinate burden on the police department to sift through its records to determine what arrests or investigations Williams had been involved in during the year preceding his death.

The city attorney offered: “[t]o the extent that we’re aware and can discover if any individuals which Detective Williams had been involved with made any kind of threat or which the department suspected may present a threat to Detective Williams, a serious threat of bodily injury or death, we will search our files and dig up that information to the extent that we can; to the extent that anyone is aware of that type of factor.” The trial court concluded defendant had not given sufficient justification for the discovery, and denied the motion except “insofar as any information that’s been obtained by the Police Department that perhaps other individuals may have made threats against officer Williams.” Defendant speculates that some person under investigation by Detective Williams, but who had not, to the knowledge of the prosecution, made any threat against the officer, may have been responsible for murdering the officer.

The court acted within its discretion in denying defendant’s request to the extent the request was not focused on evidence of threats to Detective Williams. (See People v. Kaurish (1990) 52 Cal.3d 648, 686-687 [276 Cal.Rptr. 788, 802 P.2d 278].) We are supported in reaching this conclusion by the circumstance that the information requested was subject to the official information privilege (Evid. Code, § 1040; In re David W. (1976) 62 Cal.App.3d 840, 846-847 [133 Cal.Rptr. 342]; see also Craig v.

Municipal Court (1979) 100 Cal.App.3d 69, 76-78 [161 Cal.Rptr. 19] [recognizing the need to keep confidential the arrest records of third parties]), at least to the extent the “necessity for preserving the confidentiality of the information . . . outweighs the necessity for disclosure in the interest of justice . . . .” (Evid.

Code, § 1040, subd. (b)(2).) As we have observed, “[although policy may favor granting liberal discovery to criminal defendants, courts may nevertheless refuse to grant discovery if the burdens placed on government and on third parties substantially outweigh the demonstrated need for discovery.” (People v. Kaurish, supra, 52 Cal.3d at p. 686.) There is a significant interest in preserving the confidentiality of an individual citizen’s arrest records (ibid.; Westbrook v. County of Los Angeles (1994) 27 Cal.App.4th 157, 165-166 [32 Cal.Rptr.2d 382]; Craig v.

Municipal Court, supra, 100 Cal.App.3d at pp. 76-78), and defendant’s showing of need for those records was based upon speculation and constituted the proverbial fishing expedition. No abuse of discretion is shown. We also reject defendant’s due process claim with respect to this evidence, on the ground defendant is unable to demonstrate the existence of exculpatory material evidence in the possession of the prosecution. 7.

Denial of continuance before the preliminary hearing After numerous continuances obtained by or concurred in by the defense, defendant’s preliminary hearing was scheduled approximately five months after his arrest. At that time he moved for continuance of the preliminary hearing on the ground that the prosecution had not yet provided specified items of discovery and other items had been provided very recently, and on the further ground that the recently filed complaint charging two additional codefendants with conspiracy to commit murder would require substantially more preparation. The court denied the motion.

Defendant sought writ review of this decision in the Court of Appeal without avail, and this court denied his petition for review. Defendant filed a motion to set aside the information on the ground the denial of a continuance deprived him of various constitutional rights, including the right to the effective assistance of counsel, but the trial court denied the motion on the ground that defense counsel appeared to be very prepared for the preliminary hearing and conducted “superb” examination of the witnesses.

The court also noted that defense counsel had called 52 witnesses at the preliminary hearing while the prosecution had called 33. Defendant again unsuccessfully sought to overturn this ruling by way of a petition for writ of mandate or prohibition. Defendant contends the denial of a continuance deprived him of a meaningful preliminary hearing, in violation of what he characterizes as a federal constitutional right to the evenhanded application of state law.

He also appears to contend that denial of his motion for a continuance deprived him of the right to the effective assistance of counsel, to confront and cross-examine witnesses, and to present an affirmative defense. He contends his claim cannot be rejected on the ground that counsel conducted the preliminary hearing in a competent manner, because the crux of his claim is that counsel was deprived of crucial evidence and time to prepare in the face of matters that developed shortly before the preliminary hearing.

Defendant may prevail in this claim only if he can demonstrate that the denial of a continuance before the preliminary hearing resulted in the denial of a fair trial or otherwise affected the ultimate judgment. (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529-530; see also People v. Crandell (1988) 46 Cal.3d 833, 855 [251 Cal.Rptr. 227, 760 P.2d 423].) Defendant is unable to demonstrate that failure to grant him a continuance before the preliminary hearing had any effect on the trial or the judgment.

He is unpersuasive in contending that the requested continuance would have afforded him time and ability to develop information regarding his defense that the case against him was “invented” by the police. One year and nine months elapsed between the preliminary hearing and the evidentiary portion of the trial, allowing defendant ample time to investigate, to examine the discovered material that had been provided by the prosecution, and to prepare to meet the case against him.

His inability to secure the dismissal of the charge that he attempted to murder George Carpenter, even in the unlikely event the failure to grant him a pre-preliminary-hearing continuance was the cause, is not a basis for reversal of the ensuing conviction as long as the denial of a continuance did not deprive him of a fair trial on that charge or otherwise affect the ultimate judgment.

Defendant has made no showing that the denial of a continuance had such an effect as to any of the charges, or that the denial of a continuance had any impact at subsequent trial proceedings on his rights to counsel, to confront the witnesses against him, or to present a defense. Accordingly, we reject these claims. 8. Faretta motions Defendant contends the trial court denied him the right to represent himself at the guilt phase of the trial in violation of the Sixth and Fourteenth Amendments of the federal Constitution.

He asserts that the trial court violated this right in two respects: first, by coercing him to withdraw his pretrial motion to represent himself, and second, by denying the motion for self-representation that he renewed on the eve of trial. A defendant who knowingly and intelligently waives the right to counsel possesses a right under the Sixth Amendment of the federal Constitution to conduct his or her own defense. (Faretta v.

California (1975) 422 U.S. 806, 835-836 [95 S.Ct. 2525, 2541-2542, 45 L.Ed.2d 562].) When the defendant moves to dismiss counsel and undertake his or her own defense, he or she “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” (Id. at p. 835 [95 S.Ct. at p. 2541]; see also People v.

Pinholster, supra, 1 Cal.4th at pp. 928-929.) Further, as we have explained, “although in a criminal trial a defendant has a federal constitutional, unconditional right of self-representation, in order to invoke that right, he or she must make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. [Citations.] When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court’s discretion.” (People v.

Bradford, supra, 15 Cal.4th at p. 1365.) In exercising this discretion, the trial court should consider factors such as “ ‘the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.’ ” (People v. Burton (1989) 48 Cal.3d 843, 853 [258 Cal.Rptr. 184, 771 P.2d 1270], quoting People v.

Windham (1977) 19 Cal.3d 121, 128 [137 Cal.Rptr. 8, 560 P.2d 1187].) The record reflects that on October 8, 1987, during hearings on pretrial motions to be resolved before the commencement of jury selection, defendant, who already had been granted status as cocounsel, moved to dismiss counsel and undertake his defense alone. Counsel explained on defendant’s behalf that defendant felt such status would improve his treatment in the county jail. In addition, counsel explained that defendant viewed both of the two attorneys appointed to represent him as incompetent in being unprepared for the penalty phase.

Defendant believed that at a recent hearing, defense counsel had seemed unprepared for the prosecution’s planned introduction of certain evidence at the penalty phase, but stated that no continuance was necessary. The trial court explained that defendant’s concern over his counsel’s preparation was unfounded, and that counsel clearly would be prepared even during the guilt phase of the trial to meet the evidence referred to.

In addition, the court informed defendant that the case involved an overwhelming amount of work even for the two lawyers who had been appointed to represent him, that the court was aware how much time counsel were spending on investigation and preparation of the case, and that in the court’s view, the task would be truly overwhelming for an individual in custody and without legal training. Although the cou

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