THE PEOPLE, Plaintiff and Respondent, v. MANUEL MENDOZA, Defendant and Appellant, 24 Cal. 4th 130

Opinion KENNARD, J.— A jury convicted defendant Manuel Mendoza of one count of residential robbery (Pen. Code, § 212.5), four counts of robbery (§ 211), three counts of kidnapping for purposes of robbery (§ 209, subd. (b)), two counts of commercial burglary (§ 459), one count each of forcible rape (§ 261, subd. (a) (2)) and arson with great bodily injury (§ 451), and murder (§ 187, subd. (a)).

The jury found true allegations that defendant inflicted great bodily injury on a person over the age of 60 years during the commission of the residential robbery, the forcible rape, the arson, and the murder. (§ 1203.09, subd. (a).) The jury also found true the special circumstance allegations that defendant committed the murder during the commission of robbery, rape, and arson. (§ 190.2, subd. (a)(17)(A), (C), (H).) Defendant was sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) I.

Facts and Proceedings Defendant was convicted in this case of crimes based on four separate events, which we discuss below. A. Guilt Phase 1. Prosecution’s Case a. Robbery of Jung Wang At 4:00 p.m. on February 5, 1986, Jung Wang was working at Mickey’s Liquor on Huntington Drive in Los Angeles when a man pointed a gun at Wang and demanded money. The man took about $20 in cash lying next to the cash register and left, and Wang called the police. Wang identified defendant as the robber in a photographic lineup, a live lineup, at the preliminary hearing, and at trial. b.

Kidnapping and Robbery of Piedad Saiz, Maria Galvez, and Leo Pena At 2:20 a.m. on February 6, 1986, after closing her bar, La Copa de Oro, on Huntington Drive in Los Angeles, Piedad Saiz left with Antonio Duran, Maria Galvez, and Leo Pena. As they walked towards Saiz’s car, a white 1983 Buick Regal, a man asked for a ride to North Broadway, saying he had run out of gas. Saiz turned him down. Saiz and her companions entered the car. As Saiz started to drive away, the man hung onto the passenger door. When Saiz stopped at a traffic signal a few blocks away, the man got into the backseat while brandishing a gun.

He ordered Saiz to continue driving. After traveling three to four blocks, the man ordered everyone out of the car and told Saiz to leave the key in the ignition. He then lined everyone up on the sidewalk and ordered them at gunpoint to turn over their purses and wallets. Saiz, Galvez, and Pena complied; Duran did not. The man drove away in Saiz’s car. Saiz and her companions then walked to Huntington Drive, where they flagged down a police officer. In a photographic lineup and at a live lineup, Saiz identified defendant as the kidnapper and robber. Pena identified defendant at a photographic lineup and at trial.

Duran was unable to identify defendant at trial. Galvez did not testify. Patricia Saldivar, a friend of defendant’s, testified that on the morning of February 7,1986, she saw defendant drive a white car that she thought might have been a white Regal Cutlass. Defendant said the car was his mother’s. That same morning, Ann DiPrima, defendant’s girlfriend, saw defendant drive a white Monte Carlo or Regal, which defendant said he had taken from a bar. On February 10, the police found Saiz’s white Buick Regal parked in front of DiPrima’s home. c.

Burglaries of Chung Hing News and Ying On Association At 6:00 p.m. on February 6, 1986, Ha Luong, president of the Chung Hing News on West Bernard Street in Los Angeles, locked the office and left. The next morning, he discovered that the office had been burglarized. Taken were a sound mixer, a drum set, two speakers, three amplifiers, two or three microphones, a guitar, and a bass. At 2:00 a.m. on February 7, 1986, Joseph Wong, president of the Ying On Association, located above the Chung Hing News, locked and left the office. At 8:30 that morning, the burglary of the office was discovered.

Missing were five guns registered to certain members of the association, firecrackers, a television, a video cassette recorder (VCR), $200 in cash, and 30 unopened cartons of cigarettes. When Patricia Saldivar saw defendant on the morning of February 7, 1986, there was a set of drums in the backseat of the car he was driving. That same morning, defendant’s girlfriend, Ann DiPrima, saw drums and music stands in the trunk of the car defendant was driving. Defendant also had a gun, later determined to belong to a member of the Ying On Association that had been burglarized on February 7.

Defendant left 15 cartons of cigarettes at DiPrima’s house as well as a bag of firecrackers. Defendant told DiPrima that he had obtained the items from Chinatown. DiPrima thereafter found in her backyard two large speakers with Chinese writing on them. d. Rape, Robbery, Arson Causing Great Bodily Injury, and Murder of Mary Frances Litovich On February 7, around 1:30 p.m., Philip DiPrima, the father of Ann DiPrima, defendant’s girlfriend, confronted defendant, who was in Ann’s bedroom, about the recent theft of three guns from the DiPrima’s home. DiPrima told Ann to call the police.

When DiPrima asked defendant, “Why are you stealing from me?” defendant answered that he needed money to support his cocaine habit. When DiPrima asked if there was a gun in the case defendant was holding, defendant told him there was. DiPrima then told defendant he had a choice between going out the window with the gun and taking his chances with the police or letting DiPrima help him get into a drug rehabilitation program. By that time, Officer Stephen Perry of the Alhambra Police Department had arrived outside the house. DiPrima convinced defendant to follow him through the house and out the front door.

As they came out of the front door, Officer Perry told defendant to put his hands up. Defendant dropped the gun case, ran back into the house, went out a side door, and climbed over a fence. Officer Perry radioed for assistance and gave the police dispatcher a description of defendant. Officer Richard Hinds and Officer Bruce Nyquist helped Officer Perry search the neighborhood for defendant. Officer Nyquist saw a man matching Officer Perry’s description climb a fence on Stock-bridge Avenue.

Between 1:30 and 2:00 p.m., defendant came through the back door of his friend Patricia Saldivar’s house on Poplar Street near Stockbridge Avenue. When he left, defendant asked Saldivar to water down the cement in the back of her house so that dogs could not smell his scent. During the search for defendant, Officer Hinds was checking the 3600 block of Stockbridge Avenue when Mary Frances Litovich came out of her home and told him that her dog and several other dogs in the neighborhood had been barking. Officer Hinds told her to go back into the house.

When Philip DiPrima told Officer Perry that he did not want to press charges against defendant, Officer Perry called off the search at 2:02 p.m. and the police left the area. Between 2:00 and 3:00 p.m., Richard Davila and Rudy Alarcon were in front of Litovich’s house on Stockbridge Avenue when they heard an explosion and a woman scream “help me” three or four times. When the men saw smoke streaming out of a window on the side of the house, they went to the house to try to fight the fire. Through a window, Davila saw Mary Frances Litovich lying on a bed semi-nude and struggling unsuccessfully to get up.

The mattress, curtain, and walls were on fire; the flames around the bed were about a foot high. Davila found a hose in the backyard and aimed it through the window in an attempt to soak down the bed. After his efforts to reach Litovich inside the house were unsuccessful, Alarcon helped Davila in hosing down the fire. They were then joined by Jaime Villanueva, James Zito, and a neighborhood boy. Soon after the fire was reported at 2:40 p.m. firefighters arrived and put out the fire.

Arson investigator Anthony Jakubowski determined that a water-soluble flammable liquid, such as rubbing alcohol or cooking sherry, had been poured over the bed and distributed throughout the room and then ignited with an open flame. Around 3:30 p.m., homicide detective Raymond Dance of the Los Angeles Police Department arrived at the crime scene. In the living room Dance saw a television, a VCR, and other items stacked in the middle of the floor. A Polaroid camera and a camera box were on the chair in the dining room. In an unoccupied bedroom, jewelry and watches were scattered across the floor.

In the bedroom containing Litovich’s body, dresser drawers had been pulled out and items of jewelry and clothing were on the floor. Detective Dance examined Litovich’s badly burned body. She was lying on her back on a twin bed, with her blouse and bra pulled above her breasts. Her right wrist was tied to one bedpost with the electrical cord from a lamp, while her left wrist was tied to the other bedpost with the electrical cord from a clothes iron. The electrical cord from a clock was looped around her neck. The cords were still attached to the appliances.

Elizabeth Morales, who resided on Sheffield near Stockbridge Avenue, testified that at 2:40 p.m. on the day of the fire she saw defendant walk down her driveway carrying a camera case and Polaroid camera film. Between 2:00 and 3:30 p.m., Luz Castellanos arrived at her home on Winchester. When she opened the door of a bathroom attached to the garage, she saw a person lying facedown on the floor; she asked a neighbor to call the police. When Luz Castellanos’s sister, Beatrice, came home between 3:30 and 4:00 p.m., she looked in the bathroom; no one was there, but the shower was muddy and the floor was wet.

The cover was off the toilet tank, and two boxes of Polaroid film were floating inside the tank. At approximately 3:50 p.m., Robert Espinosa, his brother Mike, and Richard Quezada were in a car at the corner of Poplar Street and Stockbridge Avenue, when they saw defendant run by them with a camera case. Defendant was wet from the waist up and the camera case he was carrying was wet. He appeared nervous and scared. The three men immediately drove to the scene of the fire at Stockbridge Avenue and reported their observations to Officer Bruce Spalding. Defendant was arrested shortly afterwards.

When arrested, defendant was clutching a wet camera case full of jewelry, and bills totaling $20 to $25 were found on the ground nearby. Margaret Catalano later identified the jewelry as belonging to her mother, Mary Frances Litovich, the murder victim in this case. Defendant was taken to the Hollenbeck police station and placed in a holding cell. When Officer Milton Hernandez stopped by the cell, defendant said “I burned up your momma.

Did you find my boots under her bed?” A week after his arrest, defendant telephoned his friend Rene Cardozo from jail and asked Cardozo to tell the police that Cardozo had given him the jewelry found in his possession at the time of his arrest. Cardozo refused to do so. The autopsy established that the victim’s death was caused by smoke inhalation, burns, and compression of the neck. She had suffered a blunt injury to her chest. She had been alive when the fire was started.

Allison Ochiae, a criminalist with City of Los Angeles, detected spermatozoa on two slides containing vaginal samples apparently taken from the victim during the autopsy, shortly after her death. The semen had been deposited 12 to 24 hours before the samples were taken. Ochiae was unable to determine whether the semen was defendant’s. Fingerprints lifted from the Buick car belonging to kidnap and robbery victim Saiz, from the house of murder victim Mary Francis Litovich, and from the bathroom in the Castellanos’s garage did not match defendant’s. 2.

Defense Case Defendant did not present evidence at the guilt phase of the trial. B. Penalty Phase 1. Prosecution’s Case At the penalty phase, the prosecution introduced evidence that defendant had twice assaulted his girlfriend, Ann DiPrima; that he had shot and robbed Francisco Lopez; and that he had his brother assault a witness, Richard Garcia. Ann DiPrima testified that on January 8, 1986, defendant pulled her from a parked car, hit her with his fist, ripped her shirt, and threw her to the ground. As she lay on the ground, defendant kicked her in the back.

A few months later, defendant pointed a gun at her while she was standing on the porch of her home, knocked her to the floor, and threatened to shoot her. She also testified to events relating to the robbery and shooting of Francisco Lopez. On February 1, 1986, defendant, DiPrima, Vincent Guillen, and Richard Garcia were at an apartment in El Sereno. Defendant said he wanted to commit a robbery. The four of them then left the apartment. When they came to an alley off Huntington Drive near the Copa de Oro bar, a man walked towards them. The man was staggering and appeared to be intoxicated.

DiPrima and Garcia stopped walking while defendant and Guillen continued down the alley. Ten minutes later, DiPrima heard a gunshot. Shortly afterwards, all four returned to the apartment. Defendant produced a $20 bill and some $1 bills that he said came from the man in the alley. He mentioned that on the way he had dropped a gold chain. Richard Garcia and Vincent Guillen corroborated Ann DiPrima’s testimony about the robbery and shooting of Francisco Lopez. Francisco Lopez testified that on February 1, 1986, he left the Copa de Oro bar at 11:00 p.m.

As he walked down a nearby alley, a man demanded money in Spanish. The man then placed a gun against Lopez’s chest and fired. Lopez later discovered that his gold chain, a watch, a $20 bill and eighteen $1 bills were missing. Richard Garcia, who had been with defendant shortly before and after the robbery of Francisco Lopez, testified that two weeks after the robbery defendant telephoned him from jail and told him not to say anything to the police.

A week later, on February 20, 1986, defendant again called Garcia from jail and told him he had read Garcia’s statement to the police and defendant was “going to send hit men.” On April 14, defendant’s brother Felix punched Garcia twice in the mouth for “ratting” on defendant. 2. Defense Case At the penalty phase, the defense presented the testimony of defendant’s mother and one of his sisters. Mary Mendoza, defendant’s mother, testified that defendant was born on June 14, 1965; he was the second oldest of seven children. Defendant’s father, an ironworker, was a violent alcoholic.

Once, when defendant failed to catch a grocery bag his father threw at him, the father beat him with a thick leather belt. After the beating, defendant’s behavior changed. He became uncontrollable, ran away repeatedly, and began using drugs. Mary Mendoza begged the jury to spare her son’s life. Sylvia Mendoza, defendant’s older sister, testified to the numerous beatings, “maybe three times during the week and especially during the weekends,” the children suffered at the hands of their father.

She recalled the beating incident her mother had earlier described to the jury, and said that after that beating defendant underwent a “complete change.” She asked the jury to spare defendant’s life. II. Pretrial Issues A. Substitute Counsel Defendant contends that during pretrial proceedings, when he asked for the removal of his appointed counsel, the trial court committed reversible error by failing to afford him a meaningful opportunity to explain the specific reasons for his dissatisfaction with counsel, as required by People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]. 1.

Proceedings When defendant was arraigned in February and March 1986, he was represented by the Los Angeles County Public Defender. On April 2, 1986, the trial court appointed Charles Lloyd and Gerald Lenoir as defendant’s counsel. Almost a year later, on March 13, 1987, Attorney Lenoir and defendant appeared at a hearing to set dates for pretrial motions. At the commencement of the hearing, the trial court asked defendant if he would agree to a continuance because of the absence of Attorney Lloyd, who was in court in another city.

Defendant answered “no,” adding, “I would like to dismiss my counsel.” The following colloquy then occurred: “[The court]: You want to dismiss your counsel?

Then we have to talk about that separately. “[Defendant]: I would like to represent myself. “[The court]: You want to represent yourself? “[Defendant]: I have been thinking about this and wrote up a motion on it and I was going to bring it here and give it to the bailiff to give it to the court clerk.” Through questioning, the court ascertained that defendant had a high school education, had not been examined by mental health professionals, and was 22 years old.

The court warned defendant of the dangers of self-representation, and stressed that he would not be entitled to any special consideration just because he was representing himself. When the court told defendant that self-representation would not be in his best interests, the following exchange occurred: “[Defendant]: I feel I’m not getting a defense. “[The court]: Your trial hasn’t even started yet. “[Defendant]: But I don’t know anything about my case. “[The court]: Have you had a chance to talk to Mr. Lenoir and Mr.

Lloyd? “[Defendant]: I haven’t had a chance to. “[The court]: You think that is part of the problem? “[Defendant]: I do.” The trial court suggested to Attorney Lenoir to have the case “put . . . over a week,” so he and Attorney Lloyd could discuss the matter with defendant. Defendant reiterated his desire to represent himself, saying, “regardless of anything, I am going to go pro per.

I have decided already.” The court continued the hearing for March 20, 1987, “for further motions relating to pro per, possible Marsden hearing; and we’ll proceed at that time.” This was also reflected in a minute order dated March 13, 1987. At the March 20, 1987, hearing, the trial court noted that defendant had completed a printed form to proceed in propria persona, supported by a four-page handwritten motion.

After ascertaining that defendant understood the risks of self-representation the court had mentioned at the March 13 hearing, the court granted defendant’s motion to represent himself and, at the prosecutor’s suggestion and defendant’s request, appointed Attorneys Lloyd and Lenoir as standby counsel. At a hearing on April 7, 1987, held at his request, defendant informed the court he had reached an agreement with Attorneys Lloyd and Lenoir for them to be cocounsel while defendant continued to represent himself.

Defendant and the attorneys agreed the attorneys “would be the ones actually handling the matter in court” and filing “all the motions” while defendant would represent himself “primarily for his accomplishing certain research and preparation on behalf of his case.” The court appointed Attorneys Lloyd and Lenoir counsel of record, stating that the court “would be relying upon counsel of record, Mr. Lloyd and Mr. Lenoir, to represent [defendant] fully.” 2.

Propriety of Trial Court’s Actions When a criminal defendant seeks substitution of counsel on the ground that appointed counsel is providing inadequate representation, a trial court must give the defendant an opportunity to explain the reasons for the request. (See, e.g., People v. Crandell (1988) 46 Cal.3d 833, 854 [251 Cal.Rptr. 227, 760 P.2d 423]; People v. Marsden, supra, 2 Cal.3d at pp. 123-125.) Although no formal motion is necessary, there must be “at least some clear indication by defendant that he wants a substitute attorney.” (People v.

Lucky (1988) 45 Cal.3d 259, 281, fn. 8 [247 Cal.Rptr. 1, 753 P.2d 1052].) Here, defendant did not do that. As just discussed, at both the March 13 and March 20, 1987, hearings, defendant expressed in no uncertain terms to the trial court his desire to act as his own attorney. And at the March 20 hearing, defendant presented the court a written request for self-representation. When defendant at the March 13 hearing made a fleeting reference to dissatisfaction with counsel because he was “not getting a defense,” the trial court pointed out that the case had not yet proceeded to trial.

When the court suggested putting the matter over a week to give defendant and his counsel a chance to discuss the matter, defendant insisted that “regardless of anything, I am going to go pro per,” adding “I have decided already.” Given defendant’s insistence on self-representation, the trial court was under no obligation to conduct an inquiry into any dissatisfaction defendant might have with his appointed counsel so as to necessitate substitution of counsel. B.

Effectiveness of Defense Counsel at Pretrial Proceedings Defendant contends his trial counsel rendered inadequate representation, in violation of his right to counsel under the Sixth Amendment to the federal Constitution and under

article I,

section 15 of the California Constitution. The Attorney General argues that because defendant was representing himself, he may not allege ineffective assistance of counsel. Generally it is true that a defendant who elects to be his own attorney may not thereafter seek a reversal of his conviction based on incompetent representation. (Faretta v. California (1975) 422 U.S. 806, 834-835, fn. 46 [95 S.Ct. 2525, 2541, 45 L.Ed.2d 562].) But as we noted earlier, the two court-appointed attorneys acting as defendant’s cocounsel retained control oyer pretrial and trial proceedings.

As to those aspects of the representation over which counsel retains control, counsel remains responsible for providing constitutionally effective representation, and the defendant may assert a claim of ineffective assistance of counsel. (People v. Jones (1991) 53 Cal.3d 1115, 1142 [282 Cal.Rptr. 465, 811 P.2d 757]; People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14 [259 Cal.Rptr. 701, 774 P.2d 730].) Because defendant here is challenging the adequacy of his counsel’s performance in the trial court, he may raise that claim on appeal.

Citing well-established law, we recently reiterated that a defendant claiming ineffective representation “must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ (Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 2064, 80 L.Ed.2d 674]; see also People v.

Wader (1993) 5 Cal.4th 610, 636 [20 Cal.Rptr.2d 788, 854 P.2d 80].)” (People v.

Kipp (1998) 18 Cal.4th 349, 366 [75 Cal.Rptr.2d 716, 956 P.2d 1169].) Because after a conviction it is all too easy to criticize defense counsel and claim ineffective assistance, a court must eliminate the distorting effects of hindsight by indulging “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citations.]” (Strickland v.

Washington, supra, 466 U.S. 668, 689 [104 S.Ct. 2052, 2065].) With these principles to guide us, we address defendant’s claim of ineffective assistance of counsel based on counsel’s failure to cross-examine witnesses at the preliminary hearing, failure to move to dismiss the arson special-circumstance allegation, and failure to maintain confidentiality in requesting defense funds. 1.

Counsel’s Failure to Cross-examine Arson Investigator at Preliminary Hearing and Failure to Move to Dismiss Arson Special Circumstance Defendant faults his counsel for not cross-examining arson investigator Jakubowski at the preliminary hearing. He argues that such examination would have disclosed that the flammable liquid used to set the fire at the house of murder victim Litovich was placed only on the bed next to the victim’s body, not in other parts of the room.

Defendant asserts that this disclosure at the preliminary hearing would have enabled the defense to . move to strike the arson-murder special circumstance “on the grounds that no structure or property was burned with felonious intent independent of the intent to kill the victim.” When, as here, a defendant after conviction asserts error at the preliminary hearing, the defendant must “show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v.

Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].) Defendant here has not attempted to show prejudice separate from the trial proceedings. (See People v. Williams (1988) 44 Cal.3d 883, 923, fn. 19 [245 Cal.Rptr. 336, 751 P.2d 395].) Accordingly, we will not consider his claim of error at the preliminary hearing independent of our evaluation of alleged trial error discussed below. (See post, at pp. 183-184.) 2. Defense Funding Requests

Section 987.9 allows an indigent defendant in a capital case to seek court funds for, among other things, the hiring of investigators. Under the statute, “the fact that an application has been made and the contents of the application shall be confidential.” (Ibid.) As relevant here, the first of two defense requests sought investigative funds for an amount not to exceed $1,000. The second request sought reimbursement for $775.43, based on the defense investigator’s efforts to contact certain witnesses whose names and addresses were listed in the funding request. Defendant argues that both requests violated

section 987.9 because they were not filed as confidential applications. A violation of

section 987.9 is not reversible per se, however. The defendant must show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the violation. (People v. Anderson (1987) 43 Cal.3d 1104, 1133-1134 [240 Cal.Rptr. 585, 742 P.2d 1306].) Here, defendant has not made such a showing. C. Prosecution’s Motion to Consolidate Charges and Defense Motion to Sever Charges Defendant contends the trial court erred in consolidating charges brought against him in four separate cases and in denying his motion to sever the Jung Wang and Saiz robbery counts from the Litovich murder charges.

We disagree. 1. Proceedings Defendant was-charged with a number of offenses in four separate cases. In case No. A778709, defendant was charged with 12 counts based on: the robbery of Jung Wang; the crimes of robbery and kidnapping of Piedad Saiz, Maria Galvez, and Leo Pena; the rape, robbery, and murder of Mary Frances Litovich, and the arson of her house. In case No. A777687, defendant was charged with two counts of burglarizing the residence of John and Lucy Campos. In case No. A779116, defendant was charged with the robbery and attempted murder of Francisco Lopez. And in case No.

A798662, defendant was charged with the commercial burglaries of the Ying On Association and the Chung King News. The prosecution moved to consolidate all the charges. Defendant unsuccessfully sought to sever the Jung Wang and Saiz robbery counts from those relating to the Litovich murder. The trial court consolidated the counts involving Jung Wang, Saiz and her two companions, the Ying On Association and Chung King News, and Mary Frances Litovich. The court refused to consolidate the charges stemming from the robbery and attempted murder of Francisco Lopez and the burglary of the Camposes’ home.

Defendant contends the consolidation violated the statutory requirements for joinder of counts, and in any event was an abuse of discretion by the trial court. 2. Statutory Requirements

Section 954 provides that an accusatory pleading may “charge two or more different offenses connected together in their commission ... or two or more different offenses of the same class of crimes or offenses . . . .” (Italics added.) Defendant argues the trial court violated this statute because the consolidated offenses do not meet either requirement of the statute. We disagree. The consolidated offenses are sufficiently “connected together in their commission” (ibid.), as we discuss below.

Offenses “committed at different times and places against different victims are nevertheless ‘connected together in their commission’ when they are, as here, linked by a ‘ “common element of substantial importance.” ’ [Citations.]” (People v. Lucky, supra, 45 Cal.3d at p. 276.) Here, the close time frame within which the consolidated offenses were committed shows a continuing course of criminal conduct.

The Jung Wang robbery occurred at 4:00 p.m. on February 5, 1986; the Saiz robberies and kidnappings were committed the next day, at 2:20 a.m.; the commercial burglaries were perpetrated either during the evening after the Saiz crimes on February 6, or early the next morning; the Litovich robbery, rape, and murder occurred on the afternoon of February 7, between 2:00 and 3:00 p.m. The Jung Wang robbery, the commercial burglaries, and the Litovich robbery all involved the intent to illegally obtain property. In this case, as in People v.

Lucky, supra, 45 Cal.3d at page 276, the “ ‘element of intent to feloniously obtain property runs like a single thread through the various offenses. . . .’ [Citations.]” When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant’s severance motion. (People v. Marshall (1997) 15 Cal.4th 1, 27 [61 Cal.Rptr.2d 84, 931 P.2d 262]; People v.

Price (1991) 1 Cal.4th 324, 388 [3 Cal.Rptr.2d 106, 821 P.2d 610].) In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. (People v.

Price, supra, at p. 388.) The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v.

Marshall, supra, at pp. 27-28.) Defendant correctly notes there was no cross-admissibility of the evidence of the robbery of Jung Wang, the Saiz counts, the two commercial burglaries, and the Litovich charges of rape, robbery, murder, and arson. Although cross-admissibility ordinarily dispels any inference of prejudice (People v. Arias (1996) 13 Cal.4th 92, 126 [51 Cal.Rptr.2d 770, 913 P.2d 980]), the absence of cross-admissibility does not by itself demonstrate prejudice. (People v.

Memro (1995) 11 Cal.4th 786, 850 [47 Cal.Rptr.2d 219, 905 P.2d 1305].) Accordingly, we proceed to evaluate the remaining factors set forth in the preceding paragraph. There was strong evidence against defendant on each of the consolidated counts. Robbery victim Jung Wang identified defendant as the perpetrator in a photographic lineup, a live lineup, and at the preliminary hearing.

Two of the victims of the Saiz counts identified defendant as the perpetrator of the robberies and kidnappings; thereafter two witnesses saw defendant driving Saiz’s car, and the police found Saiz’s car parked in front of defendant’s girlfriend’s house. Also, on the morning of the two commercial burglaries, property taken during the burglary of the Chung King News was seen in Saiz’s car while defendant was driving it, and defendant gave his girlfriend some of the property taken during the burglary of the Ying On Association.

As to the counts relating to the Litovich murder, defendant was seen hiding from the police less than a block away from the Litovich home immediately before the crimes were committed. After discovery of the fire at the Litovich home and while the efforts to extinguish it were still underway, defendant was seen one block from the fire with the victim’s property in his hands. At 5:25 p.m., after his arrest, defendant admitted to Officer Hernandez having “burned up” Litovich.

The strength of the evidence as to each of the consolidated counts shows that here we are not dealing with weak charges being joined with stronger charges so as to alter the outcome of some or all of the charged offenses. That the evidence against defendant on some of the counts consisted of eyewitness statements and on other counts was circumstantial does not establish improper consolidation of charges. Direct evidence is neither inherently stronger nor inherently weaker than circumstantial evidence.

Although the counts relating to the Litovich murder included special circumstance allegations, the capital charges were independent of the Jung Wang robbery count, the Saiz robbery and kidnapping counts, and the commercial burglary counts. The capital charges were not the result of joinder of the various incidents. (People v. Sandoval (1992) 4 Cal.4th 155, 173 [14 Cal.Rptr.2d 342, 841 P.2d 862].) Nor were the consolidated theft-related charges unusually likely to inflame the jury against defendant.

The counts likely to inflame a jury against defendant pertained to the Litovich murder, and they were sufficiently distinct from the consolidated counts as to render the likelihood of prejudice minimal. Defendant has failed to show that the trial court abused its discretion by consolidating the various charges and by denying his severance motion. Nor has defendant shown that the consolidation resulted in a trial that violated his right to due process, an issue we discuss below. 3.

Due Process Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the “defendant shows that joinder actually resulted in ‘gross unfairness’ amounting to a denial of due process.” (People v.

Arias, supra, 13 Cal.4th at p. 127.) In support of his contention that the consolidation of charges rendered his trial fundamentally unfair, defendant points to the prosecution’s introduction of evidence at trial of gang membership, the trial court’s failure to instruct the jury on its own motion that evidence of one crime is not to be considered as evidence of other crimes, and the trial court’s jury instruction on the use of eyewitness testimony. We reject defendant’s argument.

At the hearing in response to the defense argument that evidence of gang membership supported severing the charges, the prosecutor stated “there is absolutely no evidence of gang membership on the part of the defendant, nor do we ever intend to put any evidence of such gang membership on.” Thereafter, at trial, the prosecutor asked robbery and kidnapping victim Piedad Saiz what defendant had said when he was hanging onto her car door during the incident.

She responded that defendant said he was “a homeboy and that he had his friends around someplace.” She later testified that she understood the term “homeboy” to mean, “Well, a gang.” The defense timely objected to the latter question as immaterial. The trial court, however, overruled the objection on the ground that the question was relevant to show that Saiz’s state of mind was that of fear at the time of the offenses.

Leo Pena, who had been with Saiz during the crimes and was himself a victim, also testified that defendant said he was a “homeboy” and that “he had people around him.” Then, during closing argument the prosecutor referred to robbery victim Jung Wang’s description of defendant’s hair as “combed back like Cholo style, gang style.” These comments and those by the witnesses were fleeting and minor; they therefore did not result in gross unfairness so as to amount to a denial of defendant’s constitutional right to due process.

Equally unavailing is defendant’s assertion that the trial court should, on its own motion, have instructed the jury that evidence of one crime may not be used as evidence of another offense. We have held that neither policy nor precedent favors a rule requiring a trial court to instruct the jury sua sponte to disregard evidence of prior criminal offenses or prior criminal conduct. (People v. Milner (1988) 45 Cal.3d 227, 251-252 [246 Cal.Rptr. 713, 753 P.2d 669].) Here, the consolidated offenses were factually separable.

Thus, there was a minimal risk of confusing the jury or of having the jury consider the commission of one of the joined crimes as evidence of defendant’s commission of another of the joined crimes. Also, because of the absence of any appreciable likelihood of prejudice, we reject defendant’s contention that defense counsel’s failure to request such an instruction constituted ineffective assistance of counsel. (See People v.

Hawkins (1995) 10 Cal.4th 920, 942 [42 Cal.Rptr.2d 636, 897 P.2d 574].) We also reject defendant’s claim that the trial court’s instruction on eyewitness testimony rendered his trial grossly unfair.

The instruction told the jury: “Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged.” (CALJIC No. 2.92 (1984).) This instruction was preceded by an instruction on having to find the defendant guilty beyond a reasonable doubt, and to find him not guilty if there was any reasonable doubt as to his identity. (CALJIC No. 2.91 (1982 rev.).) In light of these instructions, a reasonable juror would have understood the challenged “eyewitness testimony” instructions to apply only to those offenses on which eyewitness testimony was presented at trial.

III. Jury Selection Defendant contends the jury selection process violated his federal and state constitutional rights to counsel, to a jury trial, to due process of law, and to reliable guilt and penalty verdicts. (U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17.) Grounds for this contention are the allegedly ineffective assistance of his counsel, the trial court’s decision to excuse two potential jurors, and the prosecution’s use of peremptory challenges to exclude potential jurors with reservations about capital punishment. A.

Competence of Counsel Defendant accuses his counsel of incompetence during jury selection for (1) failing to conduct adequate voir dire and misusing peremptory challenges of prospective jurors; (2) unreasonably stipulating that potential jurors could be excused for hardship; (3) failing to rehabilitate potential jurors; (4) failing to conduct voir dire concerning a television show; (5) failing to object to prosecutorial abuse of the voir dire process; and (6) failing to request and voir dire separate guilt and penalty phase juries. 1.

Voir Dire and Peremptory Challenges Defense counsel exercised peremptory challenges to 21 members of the venire. As to five of the challenged prospective jurors, defendant faults counsel for passing those jurors for cause with little or no questioning. Defendant points out that thereafter the prosecutor elicited information from those jurors that led defense counsel to peremptorily challenge them.

As to three of the challenged jurors, defendant asserts that their responses to questions asked in voir dire “indicated attitudes that would have made them desirable from a defense point of view, and whose peremptory dismissals are without any conceivable tactical basis.” Defendant has failed to establish ineffective assistance of counsel. The legal principles governing a claim of ineffective assistance of counsel have been set forth earlier. (Ante, at p. 158.) Briefly, to establish such a claim a defendant must show that his counsel’s performance was deficient and resulted in prejudice.

If the defendant fails to show prejudice, a reviewing court may reject the claim without determining the sufficiency of counsel’s performance. (People v. Kipp, supra, 18 Cal.4th at p. 366.) Defendant has failed to establish prejudice insofar as his claim is based on the possibility that further questioning during voir dire by defense counsel might have disclosed bias in the individuals ultimately selected as jurors. But “mere speculation that additional questioning might have disclosed a ground for challenge” is insufficient to establish ineffective representation. (People v.

Kipp, supra, 18 Cal.4th at p. 368.) To the extent defendant’s claim is based on the voir dire of the eight jurors who were peremptorily challenged by defense counsel, he has failed to show deficient performance. “Because the use of peremptory challenges is inherently subjective and intuitive, an appellate record will rarely disclose reversible incompetence in this process.” (People v. Montiel (1993) 5 Cal.4th 877, 911 [21 Cal.Rptr.2d 705, 855 P.2d 1277].) The record here does not support defendant’s claim that counsel’s exercise of the peremptory challenges showed ineffective representation.

With regard to counsel’s peremptory challenges to five of the prospective jurors, defendant does not contend his counsel lacked sufficient grounds for the challenges. With respect to defendant’s argument that three of the peremptorily challenged jurors would have been favorable to the defense, there were ample grounds for the challenges, because each expressed strong support for the death penalty in response to questions asked in voir dire. 2. Excusing Potential Jurors for Hardship Defendant contends his trial counsel should have objected when the court excused some prospective jurors for hardship.

Defendant has made no effort to establish that counsel’s performance was deficient when measured against the standard of a reasonably competent attorney or that counsel’s purported deficient performance prejudiced defendant. We therefore reject this claim. 3. Prospective Jurors Excused for Cause A juror whose views on capital punishment would “ ‘prevent or substantially impair the performance of [the prospective juror’s] duties as a juror in accordance with the instructions and oath’ ” may be excluded for cause. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841]; see People v.

Guzman (1988) 45 Cal.3d 915, 955 [248 Cal.Rptr. 467, 755 P.2d 917] [same standard applicable under California Constitution].) Here, the trial court excused four prospective jurors after finding that their ability to perform their duties was impaired by their opposition to the death penalty. Defendant faults trial counsel for not asking “rehabilitating” questions in an attempt to establish that these particular individuals were qualified to serve as jurors.

When, as here, prospective jurors indicate they would have difficulty imposing the death penalty, but their answers are somewhat ambiguous, defense counsel may reasonably conclude from the answers given that the ability of each prospective juror to follow the law was substantially impaired, and that additional rehabilitative questioning would be futile. Alternatively, counsel may conclude that further questioning might provide additional indications of the prospective juror’s unwillingness to impose the death penalty, thus increasing the likelihood of getting a juror favorable to the defense excused. (People v.

Memro, supra, 11 Cal.4th at p. 819; People v. Tuilaepa (1992) 4 Cal.4th 569, 587 [15 Cal.Rptr.2d 382, 842 P.2d 1142].) Under these circumstances, counsel cannot be said to have rendered ineffective representation. (People v. Memro, supra, at pp. 818-819.) 4. Voir Dire About Television Show On the morning of April 14, 1988, during the jury selection process, the prosecutor informed the court that a television program on the death penalty hosted by Geraldo Rivera had been broadcast the previous night. The program included interviews of death row inmates, lawyers, experts, and psychiatrists.

The prosecution requested the court to ask prospective jurors whether they had seen the program and, if so, whether it had in any way affected their views on the death penalty. After telling the prospective jurors that “Geraldo Rivera had a program on death row inmates and the death penalty in California,” the court asked how many of the prospective jurors had watched the program. Of the 14 prospective jurors who responded affirmatively, two later served on the jury and a third served as an alternate juror.

The trial court admonished the prospective jurors that they should only obtain information “about the criminal justice system, capital punishment and death penalty cases in this courtroom, not through the sensationalism of journalism.” The court then asked the prospective jurors to raise a hand if the program had affected their views. No hands were raised, and the .attorneys declined the court’s invitation for further questioning. On April 18, 1988, jury selection resumed.

Some of the prospective jurors present that day, including three who ultimately served on the jury, had not been in court on April 14 when the court questioned the prospective jurors about the television program in question, and on April 18 the court did not mention it. Defendant faults his trial counsel for not further questioning the panel of prospective jurors on April 14 about the television program, and for not questioning the panel at all on April 18. We find no incompetence of counsel.

As to April 14, the trial court determined the identity of the prospective jurors who had seen the television program, ascertained that it would not affect their ability to make a decision in this case, and admonished them that all of their information about the death penalty and this case was to be acquired in the courtroom.

On both April 14 and April 18, trial counsel may well have decided as a tactical matter that it would be unwise to draw attention to the television show, and that given the panel’s earlier indication to the trial court that the program had not affected their views, no further questioning by counsel was called for.

With regard to counsel’s decision not to question the jury panel on April 18, we apply the rule that “ ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ ” for counsel’s actions or omissions, we must reject a claim of ineffective representation. (People v. Kipp, supra, 18 Cal.4th at p. 367.) In this case, defendant has not made the requisite showings.

Defendant speculates, based on testimony at a posttrial evidentiary hearing regarding allegations of jury misconduct, that the jury may have discussed “a matter apparently discussed on the television show.” At the hearing, a juror who was present on April 14, 1988, testified: “All I recall is the TV program about someone getting ... his death penalty turned over.” The juror added, however, that she did not recall anyone saying anything about the possibility of a reversal of a sentence of life without the possibility of parole, and that if the subject was mentioned it was not discussed in depth.

Defendant has not shown that the jury did discuss the television program. Nor has he shown that if such a discussion occurred, he suffered prejudice. 5. Failure to Object to Prosecution’s Voir Dire Defendant contends his trial counsel was ineffective because they failed to object to voir dire questions the prosecutor asked some of the prospective jurors, including two who ultimately served as jurors.

Defendant considers objectionable the prosecution’s inquiries to prospective jurors whether they would view a person’s possession of recently stolen property as circumstantial evidence that the person stole the property, whether they considered rape more of an assaultive than a sexually motivated offense, and whether they thought it was possible for a young man to rape an elderly woman and not be mentally ill. Defense counsel’s failure to object to these questions was not deficient performance, because the prosecutor’s questions were within the bounds of proper voir dire.

At the time of defendant’s trial, permissible voir dire questions encompassed matters on which the population holds strong views that may affect deliberations, and included reasonable inquiries into specific prejudices as a basis for a challenge for cause. (People v. Noguera (1992) 4 Cal.4th 599, 645-646 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) A question directed at obtaining knowledge as the basis for an exercise of a peremptory challenge, we said, was not objectionable “merely because of its additional tendency to indoctrinate or educate the jury.” (People v.

Williams (1981) 29 Cal.3d 392, 408 [174 Cal.Rptr. 317, 628 P.2d 869].) Here, the prosecution’s questions concerning circumstantial evidence enabled it to learn whether prospective jurors could understand and draw inferences from such evidence; the questions regarding rape being an assaultive or a sexually motivated crime and whether a rape of an elderly victim by a young man established mental illness addressed possible specific biases prospective jurors might harbor and were matters about which members of the population could have strong views that could affect jury deliberations.

Defendant accuses the prosecutor of misusing the voir dire process by erroneously telling the jury that the standard of proof of beyond a reasonable doubt applied to the penalty phase and by suggesting that jurors do not have the ultimate responsibility for the penalty decision. These assertions are presented as conclusions without adequate supporting argument, and we therefore do not consider them. (People v. Barnett (1998) 17 Cal.4th 1044, 1182 [74 Cal.Rptr.2d 121, 954 P.2d 384].) 6.

Defense Counsel’s Failure to Request and Voir Dire Separate Juries Defendant argues that he was entitled to separate juries at the guilt and penalty phases and that his trial counsel was incompetent for not requesting separate juries. He does not argue that the facts or circumstances of this case compelled the empanelling of separate juries.

Rather, he argues generally that separate juries in death penalty cases are necessary to permit the defense to use voir dire to expose penalty phase bias on the part of prospective jurors by questioning them about uncharged crimes, without at the same time creating a bias against the defendant at the guilt phase by such questioning. We have rejected this contention in the past. (People v. Arias, supra, 13 Cal.4th at p. 140.) Defendant has no right to be tried by separate juries (ibid.) or to voir dire one way for the guilt phase and another way for the penalty phase (People v.

Rowland (1992) 4 Cal.4th 238, 267-268 [14 Cal.Rptr.2d 377, 841 P.2d 897]). B. Prosecution’s Challenges for Cause Defendant contends the trial court erred in granting the prosecution’s challenge for cause of two prospective jurors, Dolores J. and Ibrahim K. A “for cause” challenge to a prospective juror should be sustained when the juror’s views would “prevent or substantially impair” the juror’s ability to perform his or her duties in accordance with the instructions and oath. (Wainwright v. Witt, supra, 469 U.S. at p. 424 [105 S.Ct. at p. 852]; People v.

Mincey (1992) 2 Cal.4th 408, 456 [6 Cal.Rptr.2d 822, 827 P.2d 388].) A reviewing court examines the. context in which the trial court ruled to determine if its decision is fairly supported by the record. (People v. Crittenden (1994) 9 Cal.4th 83, 122 [36 Cal.Rptr.2d 474, 885 P.2d 887].) If a prospective juror’s responses to voir dire questions are halting, equivocal, or even conflicting, “we defer to the trial court’s evaluation of a prospective juror’s state of mind, and such evaluation is binding on appellate courts.” (People v.

Fudge (1994) 7 Cal.4th 1075, 1094 [31 Cal.Rptr.2d 321, 875 P.2d 36].) The record here supports the trial court’s decision to excuse Prospective Juror J. for cause. When initially questioned by the court and counsel, J. said that although she generally opposed the death penalty, in an appropriate case she could vote to impose the death sentence.

During a noon recess, however, J. wrote a note to the court about her previous answers, stating in part: “Although my answers favored the death penalty, to me every life should be held precious and I have changed my mind.” It became clear upon further examination that J. would not vote for the death penalty in any case. For example, when the prosecutor asked J. if she would always vote for life without possibility of parole “no matter what kind of case it was,” she answered, “that’s right.” The record also supports the trial court’s decision to excuse Prospective Juror K. for cause.

K. said on voir dire that he could never impose the death penalty in a case that did not involve mass murder and that he would vote for the punishment of life without possibility of parole in every case. C. Prosecution’s Peremptory Challenges Defendant argues the prosecutor violated his constitutional rights to due process, to an impartial jury, and to a reliable determination of the sentence in a capital case by the systematic use of peremptory challenges to exclude prospective jurors who expressed reservations about the death penalty but were not excusable for cause.

Defendant acknowledges that we rejected this argument in People v. Turner (1984) 37 Cal.3d 302, 313-315 [208 Cal.Rptr. 196, 690 P.2d 669], but he urges us to reconsider Turner. We have in the past rejected the contention that the United States Supreme Court’s decision in Gray v. Mississippi (1987) 481 U.S. 648 [107 S.Ct. 2045, 95 L.Ed.2d 622] requires a reexamination of this conclusion. (People v. Carrera (1989) 49 Cal.3d 291, 331-332 [261 Cal.Rptr. 348, 777 P.2d 121].) We see no reason to reconsider our holding in Turner. (People v. Champion (1995) 9 Cal.4th 879, 907 [39 Cal.Rptr.2d 547, 891 P.2d 93].) D.

Alleged Jury Bias Defendant argues the jury was biased in favor of the prosecution because the trial court excluded prospective jurors with conscientious scruples against the death penalty, because the jurors were subjected to inadequate voir dire for bias, and because the jurors were biased in their evaluation of the truth of uncharged offenses at the penalty phase. We disagree. As just discussed, the trial court properly excluded certain individuals from serving as jurors.

Defendant’s claim of lack of voir dire for bias and jury bias in the determination of uncharged offenses at the penalty phase is a rephrasing of his claim that he is entitled to separate guilt and penalty phase juries. We rejected that claim, ante, at pages 168-169. IV. Guilt Phase Issues A. Competence of Defense Counsel Defendant accuses his counsel of rendering incompetent representation at the guilt phase.

The legal principles governing claims of ineffective assistance of counsel have been set forth above. (Ante, at p. 158.) Briefly, to establish such a claim a defendant must show that trial counsel’s performance was deficient and resulted in prejudice. If a defendant fails to show prejudice, a reviewing court may reject the claim without determining the adequacy of counsel’s performance. (People v. Kipp, supra, 18 Cal.4th at p. 366.) 1.

Failure to Object to Photographs of Murder Victim Defendant faults trial counsel for not objecting to the admission into evidence of photographs of victim Mary Frances Litovich’s charred body and of her when she was alive. Defendant argues the photographs were irrelevant to any issue in the case. Established rules of evidence govern the admissibility of photographs. (People v. Crittenden, supra, 9 Cal.4th at p. 132.) Only relevant evidence is admissible. (Evid.

Code, § 351.) Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to the action, including the credibility of witnesses. (Id., § 210.) The photograph of Litovich’s body was relevant because it corroborated and clarified not only arson investigator Jakubowski’s testimony as to where and how the fire started and spread, but also the coroner’s testimony regarding the cause of death and condition of the body. (People v. Scheid (1997) 16 Cal.4th 1, 18 [65 Cal.Rptr.2d 348, 939 P.2d 748]; People v. Crittenden, supra, 9 Cal.4th at p. 132; People v.

Pride (1992) 3 Cal.4th 195, 243 [10 Cal.Rptr.2d 636, 833 P.2d 643].) The photograph was also relevant to the prosecution’s proof of the charges of forcible rape, residential robbery, and arson with great bodily injury. Contrary to defendant’s assertion, photographs of a murder victim may be relevant in murder cases tried on any theory, including the theory of felony murder. (People v.

Scheid, supra, 16 Cal.4th at pp. 17-18.) The photograph of Litovich when she was alive was relevant to Officer Hinds’s identification of her as the person to whom he spoke shortly before discovery of the fire, thereby assisting the prosecution in establishing the chronological order of events. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1230 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) We reject defendant’s argument that trial counsel could have prevented the admission into evidence of the photographs by stipulating to the truth of matters to which they were relevant. (See People v.

Pride, supra, 3 Cal.4th at p. 243.) We also reject defendant’s assertion that trial counsel was incompetent in not objecting, on the ground of lack of foundation, to the admission of the photograph of the victim when she was alive. For the reasons given above, such an objection would not have been well taken and would therefore have been futile. Finally, an objection by the defense counsel to the introduction into evidence of the photograph of Litovich’s body on the ground that it was more prejudicial than probative would not have succeeded. (Evid.

Code, § 352.) We have independently reviewed the photographs, and we conclude that they are not unduly gruesome or inflammatory. (People v. Scheid, supra, 16 Cal.4th at p. 19; People v. Pride, supra, 3 Cal.4th at p. 243.) 2. Defense Counsel’s Failure to Object to Prosecutor’s Argument Defendant complains about his counsel’s failure to object to allegedly improper statements in the prosecutor’s guilt phase closing argument to the jury. We reject defendant’s claim.

A prosecutor’s argument may properly be based on evidence, including reasonable inferences or deductions drawn from the evidence, and on matters that are common knowledge. (People v. Williams (1997) 16 Cal.4th 153, 221 [66 Cal.Rptr.2d 123, 940 P.2d 710].) A defense attorney’s failure to object at trial rarely establishes ineffectiveness. (Ibid.; People v. Kelly (1992) 1 Cal.4th 495, 540 [3 Cal.Rptr.2d 677, 822 P.2d 385].) Here, defendant faults trial counsel for not objecting on the ground that in closing argument the prosecutor improperly “testified” to facts not in evidence.

Defendant initially cites the prosecutor’s comment to the jury that robbery victim Jung Wang had described defendant’s hair as “combed back like Cholo style, gang style.” As defendant notes, Wang never testified that defendant wore his hair “gang style,” only that he wore it “Cholo style.” The prosecutor’s “gang style” remark, however, was fleeting and was made in the context of noting the identification of defendant by several witnesses.

Nor can trial counsel be faulted for not objecting to the prosecutor’s comments that defendant was not intoxicated on the day of the murder, as shown by his ability to concoct a lie, and that defendant could not have found Litovich’s jewelry or received it from someone else because “[w]e know the defendant is a loner.” These comments by the prosecutor were within the scope of the evidence presented.

Equally without merit is defendant’s assertion that his counsel should have objected when the prosecutor used the word “we” in her remark, “[w]e know the defendant is a loner.” The word “we” obviously included the jury, and the comment referred to the evidence presented to the jury. Defendant also contends his trial counsel should have objected to what defendant describes as prosecutorial misrepresentations of the law.

He accuses the prosecutor of improperly arguing to the jury that defendant failed to present expert testimony showing that defendant “could not have formed” the requisite specific intent to commit the felonies involved in his case. Defendant argues that because the defense of diminished capacity was abolished before his trial, evidence that he could not have formed the requisite intent was inadmissible and the prosecutor therefore misrepresented the law to the jury. The prosecutor, however, made the statement in question while discussing the instruction about intoxication as negating specific intent.

Evidence of intoxication is admissible to show that a defendant lacked the requisite specific intent. (§ 22, subd. (b).) In context, the prosecutor’s comment referred to the possible effect of intoxication on defendant’s actual formation of the requisite specific intent, not on his capacity to form such intent. We also reject defendant’s contention that his counsel was incompetent for not objecting to the prosecutor’s argument on the definition of reasonable doubt.

After describing reasonable doubt as “like being in love,” the prosecutor told the jury: “You can’t really describe it but you know it when you see it.

It’s that feeling that you have, that you feel comfortable with and it’s not something mystical, magical at all.” The trial court gave the jury the standard instruction on reasonable doubt. (CALJIC No. 2.90 (1979 rev.).) We have previously held that the “court’s instructions, not the prosecution’s argument, are determinative, for ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” (People v. Mayfield (1993) 5 Cal.4th 142, 179 [19 Cal.Rptr.2d 836, 852 P.2d 331], quoting People v.

Clair (1992) 2 Cal.4th 629, 663, fn. 8 [7 Cal.Rptr.2d 564, 828 P.2d 705].) Defendant here has failed to demonstrate that counsel’s failure to object was prejudicial. (See People v. Kipp, supra, 18 Cal.4th at p. 366.) Defendant asserts trial counsel should have objected to the prosecutor’s description of Ann DiPrima’s testimony on the ground it misstated the evidence.

The prosecutor mentioned to the jury DiPrima’s testimony that defendant had brought to her house cartons of cigarettes, firecrackers, speakers with Chinese lettering on them, and a coffee can with coins in it, telling her that he had obtained them from Chinatown. Defendant correctly notes DiPrima did not testify that defendant told her the speakers or the can of coins were from Chinatown.

DiPrima, however, did testify that when she saw defendant the morning after the commercial burglaries he had a coffee can with change in it and that several days later she discovered speakers with Chinese lettering on them in her backyard. Defendant fails to show that trial counsel’s failure to object to the prosecutor’s slight mlscharacterization of DiPrima’s testimony was prejudicial. 3.

Defense Counsel’s Failure to Request Instructions on Lesser Included Offenses Defendant contends trial counsel should have requested jury instructions on lesser offenses necessarily included in the crimes of robbery, rape, and arson, the offenses on which his felony-murder conviction and the special circumstance findings were based. An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. (People v.

Avena (1996) 13 Cal.4th 394, 424 [53 Cal.Rptr.2d 301, 916 P.2d 1000].) To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, “evidence from which a rational trier of fact could find beyond a reasonable doubt” that the defendant committed the lesser offense. (People v. Berryman (1993) 6 Cal.4th 1048, 1081 [25 Cal.Rptr.2d 867, 864 P.2d 40].) Speculation is insufficient to require the giving of an instruction on a lesser included offense. (Ibid.; People v.

Wilson (1992) 3 Cal.4th 926, 941 [13 Cal.Rptr.2d 259, 838 P.2d 1212].) In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. (People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rptr.2d 569, 906 P.2d 531].) Defendant argues counsel should have requested an instruction on theft as a lesser included offense of robbery. He asserts the jury could have concluded that the “force or fear” element of robbery was not proven because the jury might have found that defendant did not form the intent to steal until after his attack on victim Litovich.

Defendant’s argument is based on speculation, not evidence, and we therefore reject it. (People v. Wilson, supra, 3 Cal.4th at pp. 941-942; People v. Lewis (1990) 50 Cal.3d 262, 276-277 [266 Cal.Rptr. 834, 786 P.2d 892].) Defendant faults counsel for not asking the trial court to instruct on assault, battery, and assault by force likely to cause great bodily injury as lesser offenses included in the crime of rape. He argues that the jury might have concluded there was someone else in Litovich’s house who raped her after defendant assaulted her.

Defendant relies on the absence of evidence matching the semen found in the victim to him, the absence of his fingerprints at the scene, the lack of any physical evidence from the victim (such as her hair or blood) on defendant’s body at the time of his arrest, and the short period of time in which the crimes were committed.

Even if we were to assume that the crimes of assault, battery, and assault by force likely to cause great bodily injury are necessarily included in the offense of rape and that the evidence was sufficient to permit a jury to conclude there was more than one perpetrator inside Litovich’s home, we cannot accept defendant’s argument. There is no evidence that the assault on Litovich and the rape of Litovich were committed by different people. Defendant’s argument to the contrary is pure speculation. In addition, there is no evidence that the offense committed was less than the rape charged.

Finally, defendant contends counsel should have requested an instruction on unlawfully setting fire to an inhabited structure (§ 452) as a lesser included offense of arson. He argues the record is “more consistent with a conclusion that the Litovich home burned as a result of reckless conduct in setting fire to the victim’s bed, than a conclusion that there was an intentional burning of the house itself.” Defendant relies on evidence that the fire was started at the foot of the bed to which the victim was tied and it spread from there.

Assuming for the sake of argument that unlawfully setting fire to an inhabited structure is a lesser included offense of arson, the evidence here was insufficient to require the trial court to instruct on that offense.

The evidence of the cause and nature of the fire, as presented by arson investigator Anthony Jakubowski, established that the flammable liquid used to start the fire was poured on the bed and “distributed throughout the room.” The evidence here is not substantial enough to merit consideration by the jury of the possibility that defendant recklessly set fire to a bed on which he had tied the victim without intending also to bum the house. (See People v.

Barton, supra, 12 Cal.4th at p. 195, fn. 4.) For the reasons given, we conclude that defense counsel was not incompetent for failing to request instructions on theft, assault, battery, assault with intent to inflict great bodily injury, and unlawfully causing a fire to an inhabited structure. B. Burglary Convictions 1. Motion for Judgment of Acquittal At the close of the prosecution’s guilt phase case, the trial court denied defendant’s motion for acquittal on the ground of insufficient evidence of the charges of burglary of the Chung Hing News and of the Ying On Association in the Chinatown

section of Los Angeles. (§ 1118.1.) Defendant contends the denial was error. A trial court should deny a motion for acquittal under

section 1118.1 when there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged. (People v. Mincey, supra, 2 Cal.4th at p. 432, fn. 2; People v. Ainsworth (1988) 45 Cal.3d 984, 1022 [248 Cal.Rptr. 568, 755 P.2d 1017].) In support of his claim of trial court error, defendant relies on the mle that evidence of possession of property taken in a burglary, unless augmented by other evidence corroborating the defendant’s involvement, is insufficient to support a burglary conviction (e.g., People v.

McFarland (1962) 58 Cal.2d 748, 759 [26 Cal.Rptr. 473, 376 P.2d 449]; People v. Citrino (1956) 46 Cal.2d 284, 288 [294 P.2d 32]), contending the only evidence pointing to his commission of the two burglaries was testimony that he was found in possession of property stolen in the burglaries. When, as here, a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant’s acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions. (People v.

McFarland, supra, 58 Cal.2d at p. 754; People v. Anderson (1989) 210 Cal.App.3d 414, 421 [258 Cal.Rptr. 482].) Here, there is adequate corroborating evidence. The burglaries were committed after 2:00 a.m. on February 7, 1986. Later that same morning, both Patricia Saldivar and Ann DiPrima saw defendant with property taken in the burglaries. In addition, defendant told DiPrima he had “been to Chinatown” when asked where he had obtained some of the stolen property. Based on this evidence, the trial court correctly denied defendant’s motion for acquittal. 2.

Jury Instruction on Conscious Possession of Stolen Property Defendant contends the trial court improperly instructed the jury on his possession of property taken in the burglaries and that the error requires reversal of the burglary convictions as a violation of state law. The error, if any, was harmless. The trial court gave the jury the 1984 revision of CALJIC No. 2.15, the standard instruction on possession of stolen property.

The first paragraph of the instruction explained to the jury that conscious possession of recently stolen property was not by itself sufficient to permit an inference that defendant was guilty of robbery, burglary, or kidnapping to commit robbery. It stated that corroborating evidence of guilt was necessary, but that the corroboration need only be slight and did not by itself have to be sufficient to warrant an inference of guilt.

The second paragraph of CALJIC No. 2.15 (1984 rev.) listed the types of corroborating evidence the jury “may consider”: (1) “the attributes of possession—time, place and manner”; (2) “that the defendant had the opportunity to commit the crime charged”; (3) “the defendant’s conduct”; (4) “his false or contradictory statements, if any”; (5) “other statements he may have made with reference to the property”; (6) “a false account of how he acquired possession of the stolen property”; and (7) “any other evidence which tends to connect the defendant with the crime charged.” Defendant concedes he made statements with reference to the property, as listed in category (5), but he asserts there was no evidence on the other categories and therefore they should not have been mentioned in the instruction.

Even if we assume error, defendant suffered no prejudice. The instruction in general was favorable to defendant. It told the jury that possession of stolen property alone was insufficient to permit an inference that defendant was guilty of burglary. (People v. Johnson (1993) 6 Cal.4th 1, 37 [23 Cal.Rptr.2d 593, 859 P.2d 673].) The second paragraph of the instruction said that the jury “may consider” the categories listed, and thus did not require the jury to take them into account.

Also, the trial court instructed the jury on the definition of burglary. (CALJIC No. 14.50 (1981 rev.).) Moreover, the court told the jury to “disregard any instruction which applies to a state of facts which you determine does not exist.” (CALJIC No. 17.31.) As we have explained, here there was sufficient corroborating evidence of defendant’s commission of burglary. (See People v. Holt (1997) 15 Cal.4th 619, 676-677 [63 Cal.Rptr.2d 782, 937 P.2d 213].) It is not reasonably probable a result more favorable to the defendant would have been reached in the absence of the error, if any. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; People v. Peters (1982) 128 Cal.App.3d 75, 86 [180 Cal.Rptr. 76].) C. Admission of Evidence On May 9, 1988, the prosecution called as a witness Dr. Lakshmanan Sathyavagiswaran, the Chief of Forensic Medicine for the Los Angeles County Medical Examiner’s office. Doctor Sathyavagiswaran briefly described his professional experience, which included the performance of over 2,500 autopsies and the supervision of numerous autopsies. Later that day, the prosecution recalled Dr.

Sathyavagiswaran to testify that wounds shown on a photograph of defendant’s neck taken the day after his arrest were scratch marks made within 24 hours of the photograph being taken. The defense objected to this testimony as lacking any evidentiary foundation, lacking pretrial discovery, and being unduly prejudicial. Defendant contends the trial court erred in overruling the objection. Not so. A witness is qualified to testify as an expert if the witness has special knowledge, skill, experience, or education pertaining to the matter on which the testimony is offered. (Evid.

Code, § 720.) In reviewing a trial court’s ruling allowing expert testimony, we ask whether the ruling was an abuse of discretion. (People v. Mayfield (1997) 14 Cal.4th 668, 766 [60 Cal.Rptr.2d 1, 928 P.2d 485]; People v. Chavez (1985) 39 Cal.3d 823, 828 [218 Cal.Rptr. 49, 705 P.2d 372].) Here, Dr. Sathyavagiswaran testified he was a licensed physician and the Chief of Forensic Medicine for the Los Angeles County Medical Examiner’s office, and that he had performed over 2,500 autopsies. Given this evidence, the record amply supports the trial court’s ruling that Dr.

Sathyavagiswaran was qualified to testify to the nature of the wounds shown in the photograph of defendant. Contrary to defendant’s assertion, Dr. Sathyavagiswaran’s testimony did not violate defendant’s discovery rights. The scratches on defendant’s neck were noted at the preliminary hearing on the murder charge, and the prosecution’s pretrial disclosure of information to the defense included five photographs of the injuries to defendant’s neck and arms taken the day after his arrest.

Likewise unpersuasive is defendant’s claim that the trial court should have excluded the testimony because it was given months after the wounds had healed. The defense as well as the prosecution had adequate evidence of defendant’s wounds before trial. Also meritless is defendant’s argument that there is no affirmative showing in the record that the trial court weighed the prejudicial effect of admitting the testimony against its probative effect. (Evid. Code § 352.) A 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, 996 P.2d 46].) Here, the record as a whole shows that the court performed its obligations. (See People v. Riel (2000) 22 Cal.4th 1153, 1187-1188 [96 Cal.Rptr.2d 1, 998 P.2d 969].) We further reject defendant’s contention that the trial court erred by admitting the testimony of kidnapping and robbery victim Piedad Saiz that she understood the word “homeboy” to refer to a gang. As noted, ante, at page 163, the prosecutor asked Saiz what defendant said when he was hanging onto her car door in the course of the offenses.

Saiz responded that defendant had said he was a “homeboy.” When the prosecutor asked Saiz what the term “homeboy” meant to her, the defense objected to the question as being immaterial. The trial court overruled the objection after the prosecutor responded that the question “goes to her state of mind as to whether or not there was fear induced.” Saiz then testified that she understood the term “homeboy” to mean “a gang.” Defendant was charged with robbing Saiz.

The elements of robbery include the taking of personal property from a victim by means of force or fear. (§ 211.) The prosecution’s questions and Saiz’s answers were directly relevant to establishing the element of fear. Thus, contrary to defendant’s assertion, this case is readily distinguishable from Dawson v.

Delaware (1992) 503 U.S. 159 [112 S.Ct. 1093, 117 L.Ed.2d 309], where the high court held that it was improper to introduce at the sentencing phase of a capital case irrelevant evidence of a defendant’s abstract beliefs. (Id. at pp. 165-167 [112 S.Ct. at pp. 1097-1099].) Equally without merit is defendant’s claim that Saiz was not competent to testify about the meaning of the word “homeboy.” Saiz testified simply to her understanding of the meaning of the term. In any event, defendant offers no sound basis to support his claim that the meaning of the term “homeboy” may only be presented through expert testimony.

We reject defendant’s contention that the probative value of Saiz’s testimony was outweighed by its prejudicial effect or that it violated his right to due process by rendering the trial unfair. As noted above, the probative value of Saiz’s testimony was high—it was evidence directly relevant to an element of an offense charged, here robbery. A defendant is not prejudiced or treated unfairly simply because the prosecution introduces evidence of the defendant’s guilt. (Evid. Code, § 352; People v.

Cudjo (1993) 6 Cal.4th 585, 610 [25 Cal.Rptr.2d 390, 863 P.2d 635].) For the same reason, we reject defendant’s claim that the prosecutor’s questions constituted misconduct. D. Jury Instructions Defendant contends the trial court erred by giving the jury standard instructions on (1) flight after a crime (CALJIC No. 2.52 (1979 rev.)); (2) sufficiency of circumstantial evidence (CALJIC No. 2.01 (1979 rev.)); and (3) sufficiency of circumstantial evidence to prove specific intent (CALJIC No. 2.02 (1980 rev.)).

In addition, defendant claims the trial court erred by not modifying on its own initiative the standard jury instruction on the factors to be considered in proving identity by eyewitness testimony. (CALJIC No. 2.92 (1984).) We reject each of defendant’s contentions, as discussed below. 1. Flight Instruction

Section 1127c requires an instruction to the jury when there is evidence of flight. The trial court here gave the standard instruction, CALJIC No. 2.52 (1979 rev.), which reads: “The flight of a person immediately after the commission of a crime, or after he is accused of the crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding the question of his guilt or innocence.

The weight to which such circumstance is entitled is a matter for the jury to determine.” Defendant contends the flight instruction violated his right to due process. He argues the instruction creates an unconstitutional permissive inference because it cannot be said with “ ‘substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.’ ” (Ulster County Court v. Allen (1979) 442 U.S. 140, 166, fn. 28 [99 S.Ct. 2213, 2229, 60 L.Ed.2d 777], quoting Leary v. United States (1969) 395 U.S. 6, 36 [89 S.Ct. 1532, 1548, 23 L.Ed.2d 57]; U.S. v.

Rubio-Villareal (9th Cir. 1992) 967 F.2d 294, 296, quoting Leary v. United States, supra, 395 U.S. at p. 36 [89 S.Ct. at p. 1548].) We have rejected closely related c

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