THE PEOPLE, Plaintiff and Respondent, v. EARL LLOYD JACKSON, Defendant and Appellant; In re EARL LLOYD JACKSON on Habeas Corpus, 28 Cal. 3d 264

Opinion RICHARDSON, J. Defendant Earl Lloyd Jackson appeals from a judgment imposing the death penalty following his conviction of two counts of first degree murder and two counts of burglary. He also seeks a writ of habeas corpus based on his claim that he was ineffectively represented by his trial counsel. As will appear, we will affirm the judgment, and deny the petition for habeas corpus relief. In October 1977, defendant was charged with the murders of Gladys Ott and Vernita Curtis. By a subsequent amended information, he was charged additionally with burglary of the residences of these two victims.

As special circumstances authorizing imposition of the death penalty under the 1977 law applicable to this case (former Pen. Code, § 190 et seq.; all further statutory references are to that code unless otherwise cited), the amended information further alleged that (1) the Ott murder was wilful, deliberate and premeditated and was committed during the course of a burglary (id., § 190.2, subd. (c)(3)(v)), and (2) defendant committed an additional act of first degree murder by killing Mrs. Curtis (id., subd. (c)(5)).

Initially a public defender was appointed to represent defendant who then pleaded not guilty and denied the special circumstances allegation. Thereafter, the public defender’s office declared that there existed a conflict of interest and Attorney Veganes was appointed to represent defendant. Numerous pretrial motions were made on defendant’s behalf by Mr.

Veganes, and denied by the court, including motions to: (1) suppress defendant’s tape-recorded statement to police officers; (2) limit voir dire examination regarding the prospective jurors’ beliefs concerning the death penalty; (3) conduct the voir dire examination of individual prospective jurors outside the presence of the other veniremen; (4) exclude the public audience during voir dire; (5) appoint an additional counsel to assist during the penalty phase; (6) permit a separate jury panel for the guilt and penalty phases; (7) disclose the prosecutor’s “jury book,” and (8) exclude as unduly prejudicial certain photographs of the victims.

Voir dire examination of the prospective jurors commenced on December 8, 1978, and was concluded on December 19. The guilt phase of the trial thereupon commenced and continued to January 8, 1979. Although defense counsel cross-examined prosecution witnesses extensively and presented a lengthy closing argument, he offered no affirmative evidence on defendant’s behalf and defendant did not take the stand. The jury found defendant guilty of two counts of first degree murder and two counts of burglary in the first degree, as charged.

The jury also found to be true both of the special circumstances which were alleged in the information. The penalty phase commenced on January 9. The People called two witnesses and rested; defendant presented no mitigating evidence. Following extended arguments by opposing counsel, the jury was instructed and commenced deliberations. On January 12, the jury fixed the penalty at death.

Following denial of his motions for new trial, for arrest of judgment, and for modification of the verdict, defendant was sentenced to death for the Ott murder and to state prison as prescribed by law for the Curtis murder and the burglaries. The present appeal is automatic. (§ 1239.) We summarize the factual background underlying defendant’s offenses as gleaned from the trial record; On August 29, 1977, her neighbors found Vernita Curtis, an. 81-year-old widow, lying unconscious on the bedroom floor of her apartment in Long Beach. Her television set, toaster and other items were missing. Mrs. Curtis lived alone.

Paramedics called to the scene observed that she bore severe facial bruises" and swelling, and subsequent examination disclosed multiple injuries to her head, neck and chest. After four days of hospitalization Mrs. Curtis died of her injuries. A neighbor lady, llena Gaines, testified at trial that while Mrs. Curtis was being removed on a stretcher from the Curtis apartment, defendant, an acquaintance of Gaines, smiled and laughed and stated to Gaines, in the words of the witness, that “He was the one who did that.

He said that he did that.” On cross-examination Gaines further testified that she had been living with Elton Boyd who, in a separate trial, had been convicted of murdering Mrs. Curtis. Other evidence adduced at trial disclosed that Boyd was defendant’s accomplice during commission of the Curtis murder. The preliminary hearing testimony of another witness, Debria Lewis, was read into the trial record. She described a conversation with defendant on September 11, 1977, during which defendant pointed to a newspaper

article reporting the Curtis murder and declared to Lewis, “This is what I done.” When Lewis asked defendant why he had so acted, he replied “If she had just been still—had been still and given him the money, that she would have been walking around today.” On September 7, 1977, Toni McDowell discovered the body of her mother, Gladys Ott, a 90-year-old widow, lying on a bed in Mrs. Ott’s apartment which was directly across a hallway from the lower floor apartment of Mrs. Curtis who was both a friend and neighbor of Mrs. Ott.

According to the witness McDowell, the Ott apartment was a “shambles” and a television set and toaster were missing. Mrs. Ott’s face was badly bruised and she appeared to have been beaten to death. An autopsy disclosed numerous injuries, including massive facial and neck bruises, fractured ribs, and an extensive vaginal laceration apparently caused by insertion of a foreign object. Defendant’s fingerprints were found on a closet doorjamb and on other objects in Mrs. Ott’s apartment. According to the witness Lewis, defendant in his September 11, 1977, conversation with her described both ladies, Mrs.

Curtis and Mrs. Ott, as “two old bags [who] were a nuisance and. . .got what they deserved.” A further witness, Debra Hall, defendant’s cousin, testified that defendant, in referring to a news

article concerning both the Curtis and Ott murders, acknowledged “This is what I did, that it was because I needed- some money.” On learning that the police were seeking him, defendant surrendered to the officers and agreed to make a tape-recorded statement. In this statement, after initially denying any participation in the crimes, defendant ultimately admitted that he and others had burglarized both the Ott and Curtis apartments. Defendant also admitted that during these burglaries he hit Mrs. Ott once and held Mrs. Curtis while his accomplices were striking her.

Defendant’s cellmates in the county jail, Mark Mikles and Ronald McFarland, testified at trial that defendant had admitted to them that he had killed both women. According to these witnesses, defendant boasted that he had repeatedly struck Mrs. Ott in the face, and had used a wine bottle to attack Mrs. Ott sexually. At the penalty phase of the trial the prosecution introduced evidence regarding the aggravated nature of the Ott slaying, including further evidence confirming defendant’s sexual mistreatment of Mrs. Ott during the burglary.

Defendant’s counsel cross-examined prosecution witnesses and made a lengthy closing argument but declined to introduce any evidence on defendant’s own behalf. On appeal, defendant makes numerous arguments. We consider each contention separately and, because of the nature of the case, our analysis is somewhat extended. We conclude that none of the contentions has merit and that no miscarriage of justice has occurred in this case (Cal. Const., art. VI, § 13). 1.

Request for Appointment of Additional Counsel Defendant asserts that the trial court erred in denying his trial counsel’s pretrial motion for the appointment of an additional attorney to assist in arguing the case. As previously indicated, prior to trial defense counsel made a series of motions concerning the procedure to be followed at trial, including a motion under

section 1095 for the appointment of additional counsel to argue the case. In support of the motion, counsel asserted that “in view of the circumstances surrounding the case.. . without going into detail, I submit to this Court that such an appointment at this particular stage of an assistant to argue the death penalty phase of this particular case. . .would tend to follow the meaning and intent of the Legislature, pursuant to that

section [1095], in a case such as this.” Without submitting further argument in support of the motion, defense counsel urged that such additional counsel be appointed to sit during the entire trial, in order to become familiar with the case. The court denied the motion. Defendant now contends that

(1) section 1095 imposes upon the court a mandatory duty to appoint,' on demand, additional counsel to argue the issues of a capital case, and (2) even if

section 1095 is deemed discretionary rather than mandatory, the trial court under the circumstances here abused its discretion in denying defendant’s motion. Neither contention has merit.

Section 1095, enacted in 1872, provides that “If the offense charged is punishable with death, two counsel on each side may argue the cause. In any other case, the court may, in its discretion, restrict the argument to one counsel on each side.” It is readily apparent from the language of the

section that it does not purport to authorize or mandate the ap pointment of additional counsel at public expense, but only to permit the argument of the case by two counsel. In referring to

section 1095 the appellate court in People v. Natale (1962) 199 Cal.App.2d 153, 157 [18 Cal.Rptr. 491], observed, “The right guaranteed by this

section is applicable only to a defendant who has retained more than one attorney as counsel in the case.

It does not give the defendant in a capital case the right to have more than one counsel appointed to represent him, but merely allows a defendant who has retained multiple counsel the right to have at least two of them argue the case.” The correctness of the Natale holding is further confirmed by the fact that the subject of appointment of counsel appears in a separate title of the Penal Code, entitled “Pleadings and Proceedings Before Trial.” (Italics added.) These sections (§§ 987-987.9) explain in detail the nature and extent of a defendant’s right to appointed counsel, investigators and experts at public expense.

It is significant that

section 1095, on the other hand, is included within a subsequent title of the code denominated “Proceedings After the Commencement of the Trial and Before Judgment” (italics added) under a

chapter designated “The Trial,” which title deals with such matters as challenges to the jury (§ 1055 et seq.), the order of trial and instructions (§ 1093 et seq.) and similar procedural matters. Defendant contends, however, that regardless of legislative intent, equal protection principles compel an

interpretation of

section 1095 which will assure to every indigent defendant the absolute right to the appointment of an additional attorney to argue on his behalf at the penalty phase of a capital case. Underlying defendant’s argument is the unsupported assumption that any advantage which is available to the wealthy defendant must, of constitutional necessity, be extended to an impecunious one, thus assuring equality of treatment. Equal protection principles, however, do not demand such practical parity.

As we noted in In re Antazo (1970) 3 Cal.3d 100 [89 Cal.Rptr. 255, 473 P.2d 999], “the equal protection clause does not require ‘Absolute equality’ [citation], is not ‘a demand that a statute necessarily apply equally to all persons’ [citation] and permits a state to ‘provide for differences so long as the result does not amount to... an “invidious discrimination.”’ [Citation.]” (P. 110.) The assistance of additional legal representation at the penalty phase argument is not a fundamental procedural right akin to the basic right to counsel (see Gideon v.

Wainwright (1963) 372 U.S. 335, 340 [9 L.Ed.2d 799, 802-803, 83 S.Ct. 792, 93 A.L.R.2d 733]) or the right to a trial transcript (see Grif fin v. Illinois (1956) 351 U.S. 12, 19 [100 L.Ed. 891, 899, 76 S.Ct. 585, 55 A.L.R.2d 1055]).

Accordingly, equal protection demands are satisfied by permitting the trial court, in its discretion, to appoint additional counsel at public expense if the circumstances in a particular case appear to require such an appointment. (See § 987.9, authorizing payment for “investigators, experts, and others for the preparation or presentation of the defense.”) Defendant alternatively contends, however, that the trial court abused its discretion in summarily denying his motion for additional counsel.

He suggests that the trial court should have held a further hearing to determine whether or not the appointment of additional counsel would have been appropriate to assure defendant a fair trial. We cannot agree. Defendant had ample opportunity to explain to the court any additional factors which supported his motion, but he failed to furnish any specific, compelling reasons in that regard.

As explained above, counsel, “without going into any detail,” merely relied upon “the circumstances surrounding the case.” In an analogous situation involving a defendant’s request to participate personally in arguments to the jury, we held that a defendant is required to make a “substantial showing” that, among other things, “the cause of justice will thereby be served.” (People v. Hill (1969) 70 Cal.2d 678, 692-693 [76 Cal.Rptr. 225, 452 P.2d 329]; see also People v.

Marsden (1970) 2 Cal.3d 118, 123 [84 Cal.Rptr. 156, 465 P.2d 44] [right to discharge counsel is not absolute but requires “a sufficient showing” of substantial impairment of the right to counsel].) Because defense counsel made no factual assertions which might have called for an additional hearing, the trial court was fully authorized to rule on the question based on counsel’s argument alone. The case is thus distinguished from Marsden, wherein the trial court failed to afford defendant a fair opportunity to explain the factual basis for his claim of inadequate representation. (See also People v.

Lewis (1978) 20 Cal.3d 496 [143 Cal.Rptr. 138, 573 P.2d 40]; cf„ Pierce v. United States (D.C.App. 1979) 402 A.2d 1237.) Pierce, supra, relied on by defendant, is similarly inapposite for in that case defense counsel candidly admitted that his lack of prior litigation experience might render his services inadequate and might necessitate additional legal assistance.

In the present case, not only was no such admission made, but the trial court had full opportunity to observe counsel in the course of extensive argument on pretrial matters prior to its ruling upon the present motion, and accordingly was well positioned to evaluate counsel’s ability. It should be noted that neither the facts nor the legal issues underlying the present case appear to have been so complex as to require the assistance of additional counsel as a matter of law. We conclude, accordingly, that the trial court acted properly and within its sound discretion in denying defendant’s motion under

section 1095. 2. Adequacy of Trial Counsel Defendant’s contention of ineffective trial representation is pointed at both the guilt and penalty phases of his trial. Defendant also has filed a habeas corpus petition alleging facts outside of the record which, assertedly, demonstrate such inadequacy. (See People v.

Frierson (1979) 25 Cal.3d 142, 157-158 [158 Cal.Rptr. 281, 599 P.2d 587].) The People, having filed a return and a supplemental return to the order to show cause, and the parties having stipulated that the habeas corpus petition may be treated as a traverse, the issue is thus properly drawn. (See In re Lawler (1979) 23 Cal.3d 190, 194 [150 Cal.Rptr. 833, 588 P.2d 1257].) a.) The Guilt Phase.

Defendant argues that his trial counsel failed to: (1) investigate the case in a proper and timely manner; (2) present a diminished capacity defense at trial; (3) object to certain adverse evidence; and (4) deny defendant’s guilt during closing argument to the jury. We examine each contention. Defendant complains that his counsel improperly delayed until the trial had already commenced before obtaining an investigator. Yet neither the record on appeal nor the habeas corpus petition affirmatively discloses either the need for such assistance or the precise extent of counsel’s own pretrial investigative efforts.

Thus we have no basis whatever for concluding that counsel failed to investigate either the facts or the law in the manner required of a reasonably competent, diligent and conscientious advocate. (Frierson, supra, 25 Cal.3d at p. 161; see People v. Pope (1979) 23 Cal.3d 412, 427 [152 Cal.Rptr. 732, 590 P.2d 859].) As appellate counsel readily concedes, “Appellant does not know if Mr.

Veganes [trial counsel] did any investigation on his own.” Appellate counsel speculates that trial counsel “probably did not interview any witnesses. ...” (Italics added.) An assertion so speculative and conjectural cannot form the basis for a finding of counsel’s incompetence on the ground of lack of investigation.

Moreover, defendant’s speculation is refuted by the record, which contains a form used by counsel in supporting his request for attorney’s fees in which he stated that he had personally interviewed defendant, his relatives, several psychiatrists, the district attorney, other defense attorneys and experts, and a trial judge familiar with death penalty procedures. Of more significance is the fact that, with one exception hereinafter discussed, defendant fails to specify what favorable evidence, if any, could have been obtained from any available witnesses.

We have never required counsel to investigate all prospective witnesses (People v. Floyd (1970) 1 Cal.3d 694, 710 [83 Cal.Rptr. 608, 464 P.2d 64]) and we cannot presume prejudice from the mere fact of counsel’s alleged inaction. As we recently observed, in order to establish a successful claim of inadequate trial representation, defendant must prove “that counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense.” (People v.

Pope, supra, 23 Cal.3d 412, 425.) Further, defendant must “affirmatively show that the omissions of defense counsel involved a crucial issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.” (Floyd, supra, 1 Cal.3d at p. 709.) In an effort to meet the foregoing Pope criteria, defendant has alleged in his habeas corpus petition that trial counsel failed specifically to investigate and present a potential diminished capacity defense based, in combination, upon defendant’s supposedly low I.Q. and his use of marijuana on the day on which one of the burglary/murders occurred.

Reduced to its essentials, the petition alleges in this regard that (1) defendant had told defense psychiatrists, prior to trial, that he had “smoked some grass” on the morning of the Ott burglary, (2) defendant’s former counsel had suspected, prior to trial, that defendant lacked average intelligence, and counsel had planned to investigate the matter, and (3) according to a psychiatrist’s recent opinion, persons of “lowered intelligence” may be more sensitive to the ingestion of marijuana from the standpoint of their “judgment and behavioral controls” than persons of normal intelligence.

Our examination of the petition, however, fails to reveal sufficient facts to establish even a prima facie case under the Pope standard. The petition does not affirmatively allege that in fact defendant has a low I.Q., or that he actually consumed marijuana on the day in question, or that the amount that he allegedly consumed was sufficient to affect, or did in fact affect, his mental capacity in some relevant manner.

In short, defendant fails to state any facts from which we might determine whether or not a diminished capacity defense was indeed pertinent to his case, i.e., constituted a “potentially meritorious” defense. (See, e.g., People v. Carr (1972) 8 Cal.3d 287, 294-295 [104 Cal.Rptr. 705, 502 P.2d 513] [failure to prove amount of marijuana smoked or its effect on defendant].) In this regard, the present case differs markedly from the situation presented in Frierson, supra, 25 Cal.3d 142.

There, defendant on appeal presented a similar claim of diminished capacity, based on trial testimony that defendant had taken “angel dust” and appeared “spaced out.” The Frierson habeas corpus petition supplemented the appeal by describing in considerable detail both the facts underlying the defense and trial counsel’s total failure to investigate or present it. We have noted in the record a counterdeclaration by defendant’s trial counsel asserting that his failure to pursue a diminished capacity defense was the result of a knowledgeable, tactical decision.

According to counsel, defendant was examined by three psychiatrists, each of whom concluded that defendant’s mental capacity was not diminished as a result of alcohol or drugs. Moreover, the psychiatric reports contained other unfavorable material, including “damaging” statements by defendant himself.

Finally, trial counsel concluded that presentation of a diminished capacity defense based primarily upon the voluntary consumption of marijuana would have (1) required testimony from defendant personally, exposing him to intense and perhaps damaging cross-examination, and (2) provoked a “negative" reaction from the jurors. Significantly, the factual assertions in the foregoing declaration stand essentially uncontradicted by defendant.

Unlike Frierson, where counsel actually presented to the jury an “incomplete, undeveloped diminished capacity defense” (25 Cal.3d at p. 164), in the present case, trial counsel elected for tactical reasons to forego such a course. We cannot say that counsel’s strategy under such circumstances was unreasonable. Defendant has failed to allege opposing facts which demonstrate affirmatively that counsel’s decision was not merely tactical but, rather, resulted from incompetence or a failure reasonably to research the law or investigate the facts of the case.

Accordingly, we are unable on this ground to conclude that trial counsel rendered inadequate representation. (Floyd, supra, 1 Cal.3d at p. 709.) In addition, defendant argues that trial counsel failed vigorously to pursue formal pretrial discovery procedures which might have assisted defense efforts. Once again, neither the record nor the habeas petition supports a finding that, in this aspect of the case, counsel failed to act in a reasonably competent manner. Indeed, the record shows that trial counsel relied upon an “informal” discovery arrangement with the prosecutor which was approved by the trial court.

Further, the record fails to disclose that the lack of any formal discovery procedures prejudiced defendant. The uncontradicted declaration by the prosecutor reveals that he gave to defense counsel copies of every document in his files months before trial. The prosecuting attorney supplemented this disclosure by delivering to defense counsel additional materials which thereafter surfaced. The declaration of defendant’s trial counsel confirms that the prosecutor “fully complied” with the informal discovery arrangement.

The only instance of possible delay in revealing evidence to defense counsel involved the statements of the witnesses Mikles and McFarland, defendant’s cellmates. Although, as discussed below, the record indicates some delay in disclosing these statements, we conclude that defendant’s interests could not have been adversely affected thereby. In response to defendant’s claims of surprise, the trial court immediately granted him his requested continuance. Further, it promptly appointed an investigator to assist defense counsel in analyzing and impeaching the probable testimony of these witnesses.

Finally, there is no suggestion of the manner in which thg asserted failure of defendant’s trial counsel to pursue formal pretrial discovery procedures resulted in the loss of any evidence which might have assisted in his defense. Appellate counsel challenges the failure of defendant’s trial counsel to object to the admission of certain evidence, including defendant’s own tape-recorded statement to police officers, the testimony of the witnesses Mikles and McFarland, the testimony of Dr.

Breton regarding the nature and extent of victim Ott’s wounds, and the preliminary hearing testimony of the witnesses Rushing and Lewis. Contrary to this assertion, however, the record indicates that trial counsel did raise timely objection to much of the foregoing evidence. Furthermore, and of equal importance, as set forth in subsequent sections of this opinion, all of the evidence complained of was properly admissible at trial and objections would have been unavailing in any event.

Any failure to object could not have amounted to that withdrawal of a potentially meritorious defense required to establish the inadequacy of counsel under our Pope standards. In addition, as we have frequently observed, the failure to object to particular items of evidence is a matter which usually involves tactical decisions on counsel’s part and seldom establishes counsel’s incompetence. (People v.

Frierson, supra, 25 Cal.3d 142, 158, and cases therein cited.) It has been aptly noted that “The indiscriminate use of objections, solely because they are available, aids neither the client nor the cause of justice. . . . ” (People v. Thomas (1974) 43 Cal.App.3d 862, 869 [118 Cal.Rptr. 226].) We cannot speculate on any tactical advantage that would have been gained by repeated and futile objections to the proffer of admissible evidence.

Appellate counsel criticizes trial counsel for alleged incompetence in failing to renew an earlier motion, subsequently withdrawn, to strike the special circumstances allegation based upon asserted arbitrary prosecutorial selection practices. Yet appellate counsel fails to discuss either the probable merits of the motion, or the chances of its success. Presumably the basis of the motion would have been the prosecutor’s decision not to seek the death penalty for Elton Boyd, an accomplice of defendant during commission of the Curtis murder.

Had such been its premise, the motion would have lacked merit, for defendant’s multiple murders of two victims, both Curtis and Ott, would have constituted a reasonable basis under the circumstances for different prosecutorial treatment of defendant and Boyd.

Indeed, defendant’s conviction by a jury of those very multiple murders constituted a “special circumstance” permitting imposition of the death penalty in the present case. (Former § 190.2, subd. (c)(5).) As another basis of claimed inadequacy it is urged that, by conceding defendant’s complicity in the murders, trial counsel argued against his client during the closing argument portion of the guilt phase. We have reviewed the lengthy closing arguments, however, and find nothing improper or incompetent in counsel’s argument.

It must be recalled that defendant himself had admitted his involvement in both murders in conversations with various witnesses and that he introduced no evidence whatever which might have exonerated him. Nor does he attempt at this time to suggest what testimony from what witnesses might have been presented to aid him.

Accordingly, it is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his client’s innocence but instead adopted a more realistic approach, namely, that although defendant and others may have committed both burglaries, and may have aided and abetted the acts of violence which caused the victims’ deaths, nonetheless any such acts were unpremeditated and lacked the requisite deliberation or intent to kill. As stated in a recent case, “good trial tactics demanded complete candor” with the jury. (People v.

Powell (1974) 40 Cal.App.3d 107, 167 [115 Cal.Rptr. 109].) Under the circumstances we cannot equate such candor with incompetence. Thus, defense counsel in closing argument reviewed some of the evidence against his client, and emphasized various defects and gaps in the evidence and in the prosecutor’s theory of deliberate, premeditated murder. He strongly urged the jurors to decline to find any special circumstances which would have permitted imposition of the death penalty.

Defense counsel stressed such matters as the monetary motive for the entries; the lack of fingerprints on the wine bottle assertedly used on the victim Ott; the general unreliability of the testimony of the various prosecution witnesses; defendant’s constitutional right to decline to testify on his own behalf; and his cooperation in surrendering to the officers when he learned they were seeking him. The defense argument comprises 48 pages of transcript. In contending that trial counsel’s presentation prejudiced defendant, his appellate counsel focuses upon only a few brief passages.

We conclude that counsel’s argument was reasonably competent considered in the light of the overwhelming evidence of defendant’s guilt. b.) The Penalty Phase. Defendant’s primary contention regarding trial counsel’s inadequacy at the penalty phase is that counsel failed to present any mitigating evidence which might have led the jury to conclude that the death penalty should not be imposed. Yet, unlike People v.

Frierson, supra, 25 Cal.3d 142, 164-166, wherein a similar theme was successfully advanced, defendant has failed to demonstrate (by his petition for habeas corpus or otherwise) what mitigating evidence, if any, beyond his youth and voluntary surrender, was available to counsel. As explained below, trial counsel argued at length in an attempt to persuade the jury to render a more lenient verdict, making frequent references to the evidence adduced during the guilt phase and to possibly mitigating factors such as defendant’s age and his cooperation with the police.

Under the circumstances, we find no basis for concluding that trial counsel afforded defendant inadequate representation at the penalty phase.

In Frierson, supra, we observed that defendant had submitted declarations from various witnesses, including friends, relatives and acquaintances of defendant “containing material which conceivably might have mitigated his conduct.” (P. 165.) Although we recognized the risk of “second-guessing” trial counsel after the event, we further noted that trial counsel’s exercise of discretion in the area of trial tactics “must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.” (P. 166.) We concluded in Frierson that counsel afforded inadequate representation at both the guilt and penalty phases.

We distinguished People v. Durham (1969) 70 Cal.2d 171, 191-192 [74 Cal.Rptr. 262, 449 P.2d 198], an opinion which contains principles of particular application to the case before us.

In Durham, speaking through Justice Sullivan, we rejected the contention that defense counsel was incompetent in failing to call any witnesses at the penalty phase of a capital case, reasoning as follows: “It is suggested that there must have been some available evidence in mitigation of penalty which might have been produced in his behalf, and that the failure to produce any such evidence resulted in constitutional infirmity. [Italics in original.] “We do not accept this suggestion.

Allegations of representation so inadequate as to amount to constitutional defect must be supported by more than speculative arguments. [Citation.] Defendant has pointed to no specific evidence in mitigation which might have been presented in his behalf; he has named no witnesses who, if called in his behalf, would have testified favorably to him on penalty issues. On the other hand, it appears that counsel presented to the penalty jury a well-reasoned argument in defendant’s behalf. . .and generally appealed to the mercy of the jury in a persuasive manner.

It further appears. .. that counsel. . . decided against [calling defendant to testify]. . . after a careful consideration as to the scope of cross-examination.... Finally, counsel subjected each witness presented by the prosecution at the penalty phase to cross-examination. In view of the totality of circumstances we cannot conclude that the representation afforded defendant at the penalty phase herein resulted in a denial of his right to the effective aid of counsel in that proceeding.” (P. 192, italics added; see also People v.

Hill, supra, 70 Cal.2d 678, 690-691 [to establish inadequacy of counsel, defendant must specify which witnesses counsel failed to call and must establish the materiality of their testimony].) The present case is indistinguishable from Durham, As in Durham, defendant herein has pointed to no witnesses who might have offered mitigating testimony. Justice Mosk’s dissenting opinion suggests that defense counsel should have called defendant’s grandmother, Mattie Jackson, to the witness stand, and that he was incompetent in failing to do so. The record, however, indicates that Mrs.

Jackson was nearly 90 years old and, in defense counsel’s opinion, was “senile.” Counsel, realizing that he had found no effective witnesses to appear on defendant’s behalf at the penalty phase, carefully explored the possibility of calling Mrs. Jackson but, after weighing the pros and cons, ultimately decided against doing so. His decision, literally and inherently teeming with tactical considerations, is one which any reasonable, competent, and diligent counsel might have made.

Under the circumstances of this case, that decision required a careful balancing by counsel of numerous factors, including (1) the ability of the witness to express herself in coherent fashion, (2) the content of her testimony, and (3) the probable effect and impact of her testimony upon the jury. Counsel might very well have determined that Mrs.

Jackson, by reason of advanced age and demonstrated inability to communicate in a rational manner (and her unshaken belief that defendant was innocent despite the overwhelming case against him) would not assist defendant at the penalty phase, and that the jurors indeed might react negatively to her testimony.

With due respect to our dissenting colleagues, under the Durham rationale “[I]n view of the totality of circumstances we cannot conclude that the representation afforded defendant at the penalty phase herein resulted in a denial of his right to the effective aid of counsel in that proceeding.” (70 Cal.2d at p. 192.) In addition, as in Durham, trial counsel herein presented to the penalty jury a reasonable closing argument based primarily upon a theme which stressed the following factors: defendant’s age (he was 19 years old when he committed the offenses), his cooperation with the police, the value of all human life, the responsibility of our capitalistic society for “creating” persons such as defendant, and the need for the exercise of mercy in order to alleviate both social and racial tensions.

Furthermore, as in Durham, trial counsel in advancing his client’s interests at the penalty phase, took reasonable additional measures such as cross-examination of prosecution witnesses, objection to prosecution evidence and proposed instructions, and submission of favorable “special circumstances” instructions. Finally, following the jury’s verdict, counsel continued his defense efforts, filing motions for new trial, for arrest of judgment, and for modification of verdict, based on a wide variety of grounds.

Trial counsel’s declaration on file herein discloses that he has had 13 years prior experience in the practice of criminal law, including murder trial participations, and that he frequently consulted with judges and other lawyers regarding the trial of a capital case and took educational courses on that subject.

As recently expressed, “Defendants have an arsenal of weapons available to them before and during trial for a meaningful defense. [Citation.] Mental strait jackets should not be placed on thoughtful defense counsel who wish to selectively choose which weapon is best for a defendant or which type of advocacy. . .is best designed to reach what they believe is a satisfactory result for their client.” (People v.

Espinoza (1979) 99 Cal.App.3d 44, 48 [159 Cal.Rptr. 803].) Defendant’s final challenge to his trial counsel’s competence is based on counsel’s failure to present to the jury as a mitigating circumstance the fact (if indeed it was a fact) that defendant had consumed some marijuana on the day of the Ott burglary/murder. (See former § 190.3, subds. (c), (g), (j).) As we have previously noted, neither the record on appeal nor the habeas corpus petition filed by defendant herein contains sufficient factual support for this theory.

Moreover, as indicated above, defendant has failed to establish affirmatively that his counsel’s omission “cannot be explained on the basis of any knowledgeable choice of tactics.” (People v.

Floyd, supra, 1 Cal.3d 694, 709.) Trial counsel’s declaration discloses that, as in Durham, he determined to withhold from the jurors any defense or theory of mitigation based on voluntary consumption of marijuana, because such a defense would have required defendant to testify and to face cross-examination with probable damaging consequences. (According to counsel, in his declaration, the prosecution possessed rebuttal evidence disclosing “vicious attacks” by defendant upon other persons.) Counsel further hoped that the jury would decline to impose the death penalty in view of its “limited knowledge” of defendant and his particular role in the offenses.

Based on the totality of circumstances, we conclude that counsel’s representation of defendant at the penalty phase did not result in a denial of defendant’s right to the effective aid of counsel. We further conclude that defendant’s petition for habeas corpus must be denied for failing to allege sufficient additional facts which either would demonstrate counsel’s incompetence or warrant an evidentiary hearing in the matter. 3.

Admissibility of Defendant’s Statement to Police Officers At trial the People were permitted, over defendant’s objection, to introduce a tape-recorded statement given by defendant to police officers during a custodial interrogation. In the statement, defendant admitted his complicity in the Curtis and Ott murders.

Defendant contends that the statement was inadmissible because (1) the officers represented to defendant that the statement would not be used for court purposes; (2) the officers promised defendant leniency in order to induce him to confess; and (3) the officers continued their interrogation after defendant had invoked his right to remain silent. None of these contentions has merit. a.) Alleged Deceit. The tape-recorded statement contains some preliminary discussion between Officers Bohnlein and Kavenajugh regarding the future use of the statement.

Contrary to defendánt’s present assertion, however, the record fails to suggest any deception whatever by these officers.

Thus, according to the record, after the officers had recited the date and time of the interrogation, the following conversation ensued: “Bohnlein: Are you gonna use that? “Kavenaugh: Yeah, that’s all. “Bohnlein: Then are we gonna use it from, for court purposes? “Kavenaugh: I don’t know. “Bohnlein: Then we just. . . “Kavenaugh: Just so we don’t forget anything. “Bohnlein: Do you mind if these statements are taped? “Jackson: Uh, no.” Officer Kavenaugh testified regarding the foregoing conversation in the course of a pretrial hearing conducted for the purpose of establishing the voluntariness of defendant’s statement.

According to Kavenaugh, the interrogating officers frequently use a tape recorder to assure that none of the contents of an interrogation is lost or forgotten. The discussion recited above related to “whether we were going to use the tape for court, or whether we were going to use it to refresh our memories when we dictate our reports.” The quoted excerpt indicates that the officers discussed possible uses of the recording. They made no statement or assurance to the effect that the recording would not be used for court purposes.

We think it significant that, although defendant himself testified at the pretrial hearing regarding the circumstances surrounding the recording of his statement, he did not assert that he was deceived or misled regarding the court use thereof. Indeed, prior to the conversation at issue, the officers had carefully advised defendant, among other things, that anything he told them “could be used against him in court.” The present case, therefore, is clearly distinguishable from People v.

Braeseke (1979) 25 Cal.3d 691, 702-703 [159 Cal.Rptr. 684, 602 P.2d 384], wherein the officers elicited defendant’s confession after apparently acceding to defendant’s request for an “off the record” interview. Here, the record affords no basis whatever to support defendant’s present contention that the officers made “false and misleading statements” regarding the ultimate use of defendant’s statement. Nor does the record disclose any “clever softening-up” conversations of the type which we condemned in People v. Honeycutt (1977) 20 Cal.3d 150, 160 [141 Cal.Rptr. 698, 570 P.2d 1050].

We conclude, accordingly, that defendant’s statement was not rendered either involuntary or inadmissible by reason of the interrogating officers’ brief reference to the possible future uses of that statement. b.) Alleged Promise of Leniency. The transcript of defendant’s statement discloses that at one point during the interrogation, following defendant’s assertion that he “didn’t do it” (referring to the burglary and murder of Mrs.

Curtis), Officer Kavenaugh stated “If you did, you are going to feel better if you tell us.” Later in the interrogation, Officer Wren asked defendant if he could point out the house where some of the stolen property was taken and Officer Collette stated “We wouldn’t let anybody see you. You are cooperating with us. You are helping yourself and you are helping us to get this... cleared up.

If we take you out there at night, hide you so nobody could see, you could point it out and get all the stuff back that was taken out of the place.” Defendant contends that the foregoing remarks constituted, improper promises of leniency or other benefits which rendered his statement involuntary. (See, e.g., People v. Jiminez (1978) 21 Cal.3d 595, 611 [147 Cal.Rptr. 172, 580 P.2d 672]; People v. McClary (1977) 20 Cal.3d 218, 228-229 [142 Cal.Rptr. 163, 571 P.2d 620].) We do not agree. As we explained in McClary, “In Hill [People v.

Hill (1967) 66 Cal.2d 536 (58 Cal.Rptr. 340, 426 P.2d 908)], we observed a line between mere police exhortation urging the suspect to talk to them, on the one hand, and express or implied offers of leniency, on the other; we explained that the distinction ‘does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police.’ (P. 549.) We noted that ‘When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,’ the subsequent statement will not be considered involuntarily made. {Ibid.) On the other hand, ‘if. . .the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible.

The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear. [Citations.]’ (Ibid.; see also People v. Nelson (1964) 224 Cal.App.2d 238, 250-251 [36 Cal.Rptr. 385].)” (20 Cal.3d at p. 228.) In the present case, it cannot reasonably be said that Officer Kavenaugh’s statement that defendant would “feel better” if he confessed constituted any promise of benefit other than the psychological benefit which “flows naturally from a truthful and honest course of conduct” (Hill, supra, 66 Cal.2d at p. 549).

It is also noteworthy that defendant himself expressly acknowledged at the conclusion of his statement that no tangible or official benefits were promised him. Similarly, Officer Collette’s statement that defendant would be helping himself by cooperating with the officers was not made to induce any statement or confession, but occurred in the context of a request that defendant escort the officers to the location of the stolen property. Significantly, this request was made after defendant had already admitted his complicity in the Ott burglary and murder.

Furthermore, our previous holdings support the conclusion that the foregoing remark would not have constituted an improper promise or inducement even had it been made for the purpose of eliciting a statement. As we noted in People v. Ditson (1962) 57 Cal.2d 415, 433 [20 Cal.Rptr. 165, 369 P.2d 714], “we find no suggestion of threats or promises. We do find searching questions and exhortations to help himself by revealing the acts of others.

But absent something other than mere questions, or exhortations to tell the truth or clear his conscience or help himself by revealing facts. . ., there appears to be nothing on the face of the record which would support a finding of overreaching or coercion.” (P. 433, italics added; accord, People v. Hill, supra, 66 Cal.2d 536, 548-549 [officers urged defendant to “help himself”].) In similar fashion, we conclude that the officers’ remarks to defendant did not render his statement involuntary. c.) Alleged Miranda Violation.

Defendant next argues that the officers improperly interrogated him despite the invocation of his constitutional right to remain silent and to consult an attorney. The record discloses that, prior to interrogating defendant, Officer Bohnlein carefully explained to defendant his various rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], and then inquired “Having those rights in mind, do you want to talk to us regarding these allegations?” According to the transcript of the tape recording, defendant replied “No.

I want to talk to—yes— (Inaudible).” Thereupon, the interrogation proceeded without further objection by defendant. Defendant argues that his response to Officer Bohnlein was an assertion of his right to remain silent, thereby rendering all subsequent statements inadmissible. It is well settled that once a suspect indicates his refusal to waive his constitutional rights, all further, interrogation must cease. (People v. Braeseke, supra, 25 Cal.3d 691, 702; People v. Pettingill (1978) 21 Cal.3d 231, 237-241 [145 Cal.Rptr. 861, 578 P.2d 108]; People v.

McClary, supra, 20 Cal.3d 218, 226.) Further, the record must contain evidence from which the trial court could have found beyond a reasonable doubt that the statement at issue was the product of a knowing and intelligent waiver of defendant’s Miranda rights. (People v. Braeseke, supra, 25 Cal.3d at p. 701; see People v. Jiminez, supra, 21 Cal.3d 595, 608.) On the other hand, as a reviewing court, we must examine the uncontradicted facts in the record to determine independently whether the trial court’s finding of intelligent waiver was properly made.

As to conflicting testimony, we must accept that version of events which is most favorable to the People, to the extent that it is supported by the record. (See People v. Jiminez, supra, at p. 609.) Defendant unsuccessfully litigated the question of his waiver of constitutional rights at two separate stages of these proceedings. First, at a pretrial hearing on defendant’s motion to exclude his statement (Evid. Code, § 402), the interrogating officers testified that defendant had responded affirmatively to their request to talk with him.

According to Officer Kavenaugh, “he wanted to talk to us, it [defendant’s response] was not a ‘no.’” Further, Kavenaugh testified that defendant said nothing to indicate he wanted to talk to an attorney. Officer Bohnlein confirmed that defendant never requested to talk to an attorney. Defendant was called to testify on the matter, and he claimed that he told the officers that “I wanted to talk to a lawyer,” and that Officer Kavenaugh agreed to obtain a lawyer for defendant.

To assist in resolving the foregoing conflicting testimony, a police sound-laboratory expert examined the tape recording and testified that in his opinion the transcription was accurate and that defendant’s response had been “No, I want to talk to—yes,” without more than a second’s pause between the word “yes” and the rest of the sentence.

The witness concluded that defendant’s response could not have included a request for an attorney because “There is not enough time between the words ‘to’ and ‘yes.’” Based upon its evaluation of all of the foregoing testimony, the trial court denied defendant’s motion, stating that “I am satisfied beyond a reasonable doubt and the mechanics of the production of this tape eliminated any possibility of, after the word ‘to,’ the defendant saying lawyer, attorney, P.D. or anything else.” Thereafter, at trial, defendant renewed his objection to the tape recording, and additional testimony was elicited outside the presence of the jury.

Officer Bohnlein stated that when defendant was asked if he wished to talk to the officers, he initially stated “No,” but then agreed to discuss the matter. At no time, according to Bohnlein, did defendant ask to talk to an attorney.

Defendant, on the other hand, testified that his response to Bohnlein’s inquiry was “No, I want to talk to a— to a—to a Public Defender.” Subsequently, defendant changed that testimony, stating that although he attempted to request an attorney, “I never did finish my sentence, whatever I said.” At the conclusion of the foregoing hearing, the trial court expressly found “beyond a reasonable doubt” that defendant was advised of his constitutional rights and that he made a knowing and intelligent waiver of those rights.

As indicated by the summarized testimony, there was ample evidence to support the trial court’s ruling. Defendant’s initial assertion that he had requested an attorney was contradicted by the interrogating officers and the police sound technician. The plain inference from the record is that defendant declined to talk with the officers and then, in the same breath, changed his mind and agreed to do so.

Although defendant now contends that all interrogation should have ceased once defendant invoked his rights by stating “No” in response to the officer’s inquiry, it is welf settled that “A suspect who has asserted his rights and prevented further lawful interrogation nonetheless retains the option, thereafter, voluntarily to initiate a confession.’ [Citations.]” (People v.

McClary, supra, 20 Cal.3d at p. 226, italics in original.) In the present case, although defendant may have fleetingly invoked his Miranda rights, he immediately agreed to waive those rights without the intervention of any urging or interrogation by the officers. The record discloses no cajoling or badgering by the police. Rather, the decision to talk appears to have been the free, voluntary decision of defendant. Accordingly, we conclude that the trial court did not err in admitting defendant’s statement into evidence. 4.

Admissibility of Photograph of Victim Curtis Defendant urges that the trial court, during the guilt phase, erred in admitting a color photograph of the face of Mrs. Curtis, disclosing multiple bruises. We have said recently that “Evidence Code

section 352 vests the court with broad discretion to weigh the prejudicial effect of proffered evidence against its probative value. [Citation.] No abuse of that discretion appears: the photograph was not cumulative, and was highly relevant evidence on the issue of malice. . . ,‘[M]urder is seldom pretty, and pictures, testimony and physical evidence in such á case are always unpleasant ....”’ (People v. Pierce (1979) 24 Cal.3d 199, 211 [155 Cal.Rptr. 657, 595 P.2d 91], italics added; see People v. Cruz (1980) 26 Cal.3d 233 [162 Cal.Rptr. 1, 605 P.2d 830]; People v.

Frierson, supra, 25 Cal.3d at p. 171.) Defendant had been charged with first degree murder of Mrs. Curtis with malice aforethought; the jury was instructed on the alternative theories of premeditated murder and felony murder. Accordingly, as in Pierce, the photograph in question bore on the issue of defendant’s requisite state of mind toward Mrs. Curtis, i.e., did he possess malice? This fact distinguishes People v. Boyd (1979) 95 Cal.App.3d 577, 589-590 [157 Cal.Rptr. 293], a case which also involved the Curtis murder.

In Boyd, the accomplice of defendant was tried under a felony-murder theory only; two color photographs of the victim were introduced.

The Court of Appeal held that the trial court erred in admitting these photographs because “It cannot be said. . . that the photographs had any degree of relevancy on issues such as intent, malice or the degree of the offense since, under the prosecution’s theory, defendant was guilty of first degree murder by virtue of the felony-murder doctrine.” (P. 589.) Although the photograph which was admitted is unpleasant to view, we conclude that the trial court did not err in admitting it.

In addition, it is noteworthy that the Boyd court held that any error in admitting the foregoing photographs was harmless in view of the “overwhelming” evidence of Boyd’s guilt. In our view the evidence of defendant’s guilt in the matter before us may be similarly characterized. 5. Admissibility of Evidence of Victim Ott’s Injuries At the guilt phase, the prosecution, outside the presence of the jury, offered to prove that the investigating officers had discovered a single human hair (possibly a pubic hair) on the neck of a wine bottle found on the floor near victim Ott’s body.

The prosecution further offered to prove that the officers also observed an injury or abrasion near the victim’s private parts. Defendant objected to the proposed testimony as unduly prejudicial (see Evid. Code, § 352) and the trial court sustained the objection. (The evidence was subsequently introduced at the penalty phase.) Thereafter, Doctor Breton, the autopsy surgeon, testified that in addition to Mrs. Ott’s various injuries and bruises, her vagina had been torn or lacerated, and that in his opinion the injury could have been caused by a foreign object such as a bottle.

Furthermore, the prosecution elicited from defendant’s jail cellmates, Mikles and McFarland, that defendant had boasted of his sexual assault with a bottle on one of the victims. Defendant contends that the admission of the foregoing testimony was improper because of its “overwhelming prejudicial nature.” To the contrary, the trial court acted well within its discretion under Evidence Code

section 352. The court properly rejected evidence of the hair on the bottle as unduly prejudicial in the light of its speculative nature. Trial courts, vested with broad discretion under this section, frequently sustain many objections to real or demonstrative evidence on the ground that its gruesome or shocking nature may unduly prejudice a defendant in the eyes of the jury. (E.g., People v. Love (1960) 53 Cal.2d 843, 856-857 [3 Cal.Rptr. 665, 350 P.2d 705]; People v.

Cavanaugh (1955) 44 Cal.2d 252, 267-268 [282 P.2d 53].) On the other hand, expert testimony regarding the extent of a victim’s injuries and the means used to inflict such injuries, is generally held admissible. (People v. Jackson (1971) 18 Cal.App.3d 504, 507 [95 Cal.Rptr. 919]; People v. Sampo (1911) 17 Cal.App. 135, 150 [118 P. 957]; see 1 Wharton, Criminal Evidence (13th ed. 1972) § 183, pp. 344-347.) Such evidence is often relevant on the issues of malice and intent. (See People v.

Pierce, supra, 24 Cal.3d 199, 211.) Furthermore, the testimony of defendant’s cellmates regarding defendant’s admission was relevant to establish that it was defendant, not his accomplice Boyd, who committed the sexual assault on victim Ott. We conclude that the trial court did not err in admitting the foregoing evidence. 6. Prosecutorial Misconduct Defendant next contends that the prosecutor improperly commented upon defendant’s refusal to testify in his own behalf. (See Griffin v.

California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229].) The record reveals that during the guilt phase of the trial, defense counsel asked the prosecutor to stipulate that defendant was 19 years old at the time of his arrest. The prosecutor refused, stating in the presence of the jury “I will not [so stipulate]. I have no information of that [defendant’s age] unless the defendant takes the stand and wishes to so testify.” The trial court thereafter stated “All right. There is no stipulation forthcoming,” and the matter was dropped.

Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand. The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v.

Vargas (1973) 9 Cal.3d 470, 475 [108 Cal.Rptr. 15, 509 P.2d 959].) We need not decide whether the prosecutor’s statement falls within the foregoing exception, or, alternatively, is an indirect reference to the fact that defendant had not previously testified, and thus is comparable to observing that defendant has not personally denied or refuted certain evidence, or that defendant is in the “best position” to explain certain facts, all of which have been held to be Griffin error. (See id., at p. 476 and cases cited.) The controlling fact is, as we made explicit in Vargas, that such indirect, brief and mild references to defendant’s failure to testify, without any suggestion whatever that an inference of guilt should be drawn therefrom, are uniformly held to constitute harmless error. (Id., at pp. 478-481.) We accordingly conclude that, on the basis of the record before us, the remark at issue could have had no significant impact upon the jury and was harmless beyond a reasonable doubt. 7.

Necessity for Manslaughter Instructions Defendant argues that the trial court erred in refusing to instruct the jury on the principles of voluntary manslaughter (§ 192). Our review of the record herein discloses, however, that there was no substantial evidence deserving of consideration which might have led reasonable jurors to reach a verdict of voluntary manslaughter. (See People v.

Flannel (1979) 25 Cal.3d 668, 684 [160 Cal.Rptr. 84, 603 P.2d 1].) Voluntary manslaughter is statutorily, defined as the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion. (§ 192, subd. 1.) As we recently observed, “If a killing, even though intentional, is shown to have been committed in a heat of passion upon sufficient provocation the absence of malice is presumed. [Citation.]. .. [H] Because the existence of malice is presumed when the circumstances of a killing suggest an intent to kill. . .provocation and heat of passion must be affirmatively demonstrated. [Citations.]” (People v.

Sedeno (1974) 10 Cal.3d 703, 719 [112 Cal.Rptr. 1, 518 P.2d 913], italics in original.) “Heat of passion” has been defined as “‘such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances....’” (People v. Berry (1976) 18 Cal.3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777], quoting from an earlier case.) As for the element of provocation, “there is no specific type of provocation required by

section 192 and. . .verbal provocation may be sufficient. [Citation.]” (Ibid.) In Berry, for example, we held that the provocative conduct by defendant’s wife which could arouse a passion of jealousy, pain and sexual rage in “a man of average disposition” was sufficient to require instructions on voluntary manslaughter. In the present case, the record indicates that defendant may have become enraged and brutally attacked and killed one of his elderly victims because she awakened during the burglary and began to scream.

No case has ever suggested, however, that such predictable conduct by a resisting victim would constitute the kind of provocation sufficient to reduce a murder charge to voluntary manslaughter. (See, e.g., People v. Morse (1969) 70 Cal.2d 711, 734-735 [76 Cal.Rptr. 391, 452 P.2d 607].) We noted in People v.

Flannel, supra, that if the evidence which supports a manslaughter theory is “minimal and insubstantial,” the trial court need not instruct on that theory. (25 Cal.3d at pp. 684-685.) We conclude that defendant presented no substantial evidence that he killed either of his victims in a heat of passion on sufficient provocation. Because of this conclusion, we need not resolve the further question whether the failure to give a manslaughter instruction was harmless error under the test announced in People v. Sedeno, supra, 10 Cal.3d 703, 721. 8.

Admissibility of Accomplice’s Statement Defendant urges that the trial court erred in permitting the witness Gaines to testify concerning remarks made to her by the accomplice Boyd which assertedly implicated defendant. Gaines testified in effect that Boyd had denied complicity in the Curtis murder and had asked Gaines to inquire of defendant why defendant had “involved” Boyd in the murder. Gaines also testified that Boyd told her he knew the person who had killed Curtis. The court at this point terminated any further inquiry on the subject.

Under defendant’s theory, because Boyd was not present at trial as a witness and was therefore unavailable for cross-examination, the admission of his remarks violated defendant’s right to confront adverse witnesses. (See Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]; People v. Aranda (1965) 63 Cal.2d 518, 530-531 [47 Cal.Rptr. 353, 407 P.2d 265].) The Bruton and Aranda rules concern the admissibility of a codefendant’s statements during the conduct of a joint trial. In the present case, defendant was tried separately from Boyd.

Accordingly, a more applicable legal principle is the hearsay rule, which (in the absence of an exception to the rule) renders inadmissible a statement “made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200; see People v. Preston (1973) 9 Cal.3d 308, 313-316 [107 Cal.Rptr. 300, 508 P.2d 300]; People v.

Simmons (1946) 28 Cal.2d 699, 712 [172 P.2d 18].) We find it unnecessary, however, to determine whether the testimony of the witness Gaines was admissible under some exception to the hearsay rule for, closely examined, her testimony regarding Boyd’s statements^ was innocuous and did not implicate defendant. The evidence of defendant’s involvement in the Curtis murder was overwhelming. It included defendant’s own admissions to Gaines, Debria Lewis, Debra Hall, cellmates Mikles and McFarland, and the interrogating officers.

Under the circumstances, it is not reasonably probable that the jury would have reached a more favorable verdict but for the admission of the foregoing testimony from the witness Gaines. Accordingly, any error in admitting it was clearly harmless. (People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243]; see also Parker v. Randolph (1979) 442 U.S. 62 [60 L.Ed.2d 713, 99 S.Ct. 2132] [opns. of Renquist and Blackmun, JJ.].) 9.

Delay in Disclosing Prosecution Witness Defendant asserts that the prosecutor unduly delayed the delivery to defense counsel of information regarding the probable testimony of defendant’s cellmate Mark Mikles concerning defendant’s admissions to him. The record reflects that Mikles’ name was added to the prosecutor’s witness list shortly before trial commenced. When defense counsel learned that Mikles would be called, he complained to the trial court that he had been given insufficient notice that the witness would be called.

In response the trial court granted a brief continuance and appointed an investigator to assist defense counsel in preparing his defense to Mikles’ testimony. In addition, the prosecutor offered to permit counsel to interview Mikles. Finally, defense counsel obtained a full preview of Mikles’ testimony during a special foundational hearing (Evid. Code, § 402) conducted prior to Mikles’ appearance on the witness stand. The grant or denial of continuances for discovery purposes is a matter peculiarly within the discretion of the trial court (People v.

Duck Wong (1976) 18 Cal.3d 178, 188-189 [133 Cal.Rptr. 511, 555 P.2d 297]) and defendant must demonstrate some resulting prejudice from the denial of a continuance (People v. Laursen (1972) 8 Cal.3d 192, 204 [104 Cal.Rptr. 425, 501 P.2d 1145]). In the present case, a continuance was granted, and defendant fails to indicate in what manner the relief obtained by him was insufficient to protect his interests as it related to Mikles’ testimony.

Defendant suggests that the prosecutor acted improperly in failing to furnish to defense counsel, prior to trial, copies of all documents or reports summarizing the evidence to be offered at trial. Although we have held that the People must furnish, sua sponte, any evidence favorable to defendant (see People v. Nation (1980) 26 Cal.3d 169, 175 [161 Cal.Rptr. 299, 604 P.2d 1051]; People v.

Ruthford (1975) 14 Cal.3d 399, 406 [121 Cal.Rptr. 261, 534 P.2d 1341]; In re Ferguson (1971) 5 Cal.3d 525, 533 [96 Cal.Rptr. 594, 487 P.2d 1234]), we have never required pretrial disclosure of unfavorable evidence, at least in the absence of a proper request therefor. We accordingly conclude that, no prejudice being shown, defendant’s present contention of untimely or inadequate evidentiary disclosure is untenable. 10. Defendant’s Absence from Mistrial Hearing Defendant contends that he was improperly deprived of his constitutional and statutory right to be present personally at all trial proceedings. (See Cal.

Const., art. I, § 15; Pen. Code, §§ 977, 1043.) He focuses, in this connection, on a proceeding during trial when, after the admission of cellmate Mikles’ testimony, defense counsel moved for a mistrial because of the prosecutor’s delay in disclosing the nature of Mikles’ testimony as it pertained to defendant’s involvement in the murders. Also at issue at this point was the question whether the prosecutor had suppressed or destroyed a tape recording of Mikles’ statement. The motion for mistrial was made in the court’s chambers outside the presence of the jury.

The court noted for the record that defendant was not personally present and defense counsel expressly waived his client’s attendance at the hearing. Thereupon, the prosecutor explained that the Mikles tape recording evidently had been inadvertently misplaced, and he described the circumstances underlying that matter. Defense counsel, acknowledging the prosecutor’s prior “honesty and credibility,” accepted the prosecutor’s explanation, but argued that in the absence of sufficient prior notice of Mikles’ probable testimony, he had been unable competently to impeach Mikles.

The prosecutor responded by pointing out that he had included Mikles’ name on a witness list furnished to defense counsel shortly before trial, and that it was defense counsel’s own responsibility to ascertain the witness’ probable testimony and to prepare to impeach it. The prosecutor also observed that Mikles’ prior criminal record adequately served to impeach that witness. In addition, both of the officers who originally interviewed Mikles had been available for interview by defense counsel.

The trial court, in denying defendant’s motion for mistrial, ruled that because defense counsel had notice “early on in the trial” of the likelihood that Mikles would testify, it was counsel’s responsibility to perform any investigative work necessary for impeaching that witness. The court further accepted the prosecutor’s explanation regarding the missing tape recording. Defendant now contends that it was reversible error to hold the mistrial hearing outside his presence. The point lacks merit.

Section 977, subdivision (b), provides in pertinent part that in felony cases “the accused must be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he shall, with leave of court, execute in open court, a written waiver. ...” Furthermore,

section 1043, subdivision (a), recites in part that “Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.” The cases which have interpreted the foregoing sections uniformly have held that the accused is not entitled to be personally present either in chambers or at bench discussions which occur outside of the jury’s presence on questions of law or other matters in which defendant’s presence does not bear a “‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’” (In re Lessard (1965) 62 Cal.2d 497, 506 [42 Cal.Rptr. 583, 399 P.2d 39]; accord In re Dennis (1959) 51 Cal.2d 666, 672 [335 P.2d 657]; People v.

Abbott (1956) 47 Cal.2d 362, 372 [303 P.2d 730]; People v. Isby (1947) 30 Cal.2d 879, 894 [186 P.2d 405]; see People v. House (1970) 12 Cal.App.3d 756, 766-767 [90 Cal.Rptr. 831]; People v. Boehm (1969) 270 Cal.App.2d 13, 19-20 [75 Cal.Rptr. 590]; People v.

Teitelbaum (1958) 163 Cal.App.2d 184, 207 [329 P.2d 157]; see 3 Wharton, Criminal Procedure (12th ed. 1975) § 483, pp. 342-345.) Stated in another way, “[W]hen the presence of the defendant will be useful, or of benefit to him and his counsel, the lack of his presence becomes a denial of due process of law.” (Dennis, supra, 51 Cal.2d at p. 673; see Boehm, supra, 270 Cal.App.2d at pp. 19-20; Teitelbaum, supra, 163 Cal.App.2d at p. 207.) The burden is upon defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial. (In re Lessard, supra, 62 Cal.2d at pp. 506-507; House, supra, 12 Cal.App.3d at p. 767; People v.

Williams (1970) 10 Cal.App.3d 745, 752 [89 Cal.Rptr. 364]; Boehm, supra, 270 Cal.App.2d at p. 20.) Both Boehm, supra, and Teitelbaum, supra, illustrate the application of the foregoing principles. The Boehm court held that defendant’s presence was not required at an in-chambers discussion culminating in the grant of immunity and dismissal of charges against a codefendant; in Teitelbaum, the court ruled that defendant was not entitled to be personally present at any of 34 separate chambers or bench discussions held outside the jury’s presence.

The Teitelbaum court observed that “In none of the instances of conferences at the bench or in chambers, were any matters presented to the court as to which appellant could have been of any aid to his counsel.

Each of them concerned questions of law as to the admissibility of evidence and any knowledge appellant may have had of the facts which his counsel did not have, would have been of no aid to his counsel in the presentation of these questions of law.” (163 Cal.App.2d at p. 207, italics added.) In the present case, as in Teitelbaum, the hearing at issue concerned a question of law regarding the admission of evidence, specifically, the necessity of ordering a mistrial by reason of the admission of Mikles’ testimony.

Because the testimony at issue had already been placed in evidence in defendant’s presence, it is difficult to conceive of any substantial reason why defendant’s continued presence would have been of any aid to his counsel in presenting the mistrial motion. Appellate counsel now speculates that had defendant been present at the hearing, he might have moved to discharge his counsel for incompetence in handling the matter. As we have hereinabove observed, however, counsel-acted with reasonable competence in investigating and presenting defendant’s case.

We conclude that defendant’s presence at the mistrial hearing was not required in order to protect defendant’s interests, to assure him a fair and impartial trial, or to assist counsel in the defense of the case. Accordingly, the court did not err in conducting the hearing in defendant’s absence. 11. Admissibility of Witness’ Prior Federal Conviction Defendant contends that the trial court erred in excluding for impeachment purposes a prior 1975 robbery conviction of Mikles in a federal youthful offender proceeding.

The basis for the trial court’s ruling was that under California law a juvenile court adjudication is not considered an impeaching conviction. (Welf. & Inst. Code, § 203; see In re Ricky B. (1978) 82 Cal.App.3d 106, 114 [146 Cal.Rptr. 828].) Defendant urges that under federal law, a prior juvenile adjudication may be admissible for purposes of attacking a witness’ credibility if a conviction of that offense by an adult would be similarly admissible and the court is satisfied that admission thereof “is necessary for a fair determination of the issue of guilt or innocence.” (Fed.

Rules Evid., rule 609(d).) We need not determine, however, the applicability of the federal rule to a state court proceeding, for it is readily apparent from the record that defendant was not substantially impeded in his impeachment efforts by the challenged trial court ruling. Defendant was permitted to disclose to the jury the fact that Mikles had suffered a 1977 robbery conviction in state court, and further that he had been convicted of, and was awaiting sentence on, four additional robbery counts.

Quite clearly, proof of the federal adjudication would have added nothing significant to the force of the impeachment evidence against Mikles which already had been adduced by defendant. 12. Admissibility of Witnesses’ Former Testimony Defendant argues that the trial court erred in admitting the preliminary hearing testimony of two witnesses (Larry Rushing and Debria Lewis) who were unavailable at trial. According to defendant, the prosecutor failed to exercise reasonable diligence in procuring the trial attendance of these witnesses.

Under California law, prior testimony may be introduced if, among other things, the declarant is unavailable as a witness. (Evid. Code, § 1291.) Unavailability may be established by showing that the declarant is “Absent from the hearing and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance by the court’s process.” (Id., § 240, subd. (a)(5).) It has been stated that the requirement of due diligence “is a stringent one for the prosecution.

It is not sufficient that reasonable diligence has been exercised in an effort to procure a defendant’s [sz'c, witness’] attendance ‘by the court’s process.’ A criminal defendant’s witness-confrontation right is deemed to require that the prosecution make the additional showing of a good faith effort and reasonable diligence to procure the witness’ voluntary attendance.” (People v. Salas (1976) 58 Cal.App.3d 460, 469-470 [129 Cal.Rptr. 871], italics in original; see People v. Johnson (1974) 39 Cal.App.3d 749, 755 [114 Cal.Rptr. 545].) In a recent review of the issue (People v.

Enriquez (1977) 19 Cal.3d 221, 235 [137 Cal.Rptr. 171, 561 P.2d 261]), for example, we observed that a prosecutor’s sole effort to procure the attendance of a witness “was to request issuance of a bench warrant and, at some undisclosed time, to ask the absent witness’ mother where he might be located.” (19 Cal.3d at p. 236.) No attempt was made in Enriquez to serve the warrant or to locate the witness based on information available to the prosecutor.

We concluded that the record disclosed “only casual indifference, not diligence, in attempting to serve the warrant on [witness] Prieto.” (Id., at pp. 236-237.) In the present case, in contrast, there is ample evidence in the record supporting the trial court’s finding of the prosecution’s due diligence. The police officers and their investigators actively sought these two witnesses by interviewing friends and relatives, checking with jails, hospitals and probation officers, and leaving appropriate messages.

The trial court heard extensive testimony on the issue and expressly found that given the “lifestyle” of these witnesses (Rushing was characterized as a “fugitive from justice,” Lewis was assertedly a prostitute), and the evident difficulties incurred in trying to find them, the prosecutor exercised due diligence under the circumstances.

As we recently noted in Enriquez, due diligence is a factual question to be determined by the trial court according to the circumstances in each case; under familiar rules the trial court’s ruling will not be disturbed unless an abuse of discretion appears. (19 Cal.3d at p. 235; see also People v. Williams (1973) 9 Cal.3d 24, 35 [106 Cal.Rptr. 622, 506 P.2d 998].) No such abuse appears herein. Moreover, even were we to hold that the prosecutor failed to exercise due diligence, any error in admitting the former testimony of witnesses Rushing and Lewis would be harmless beyond a reasonable doubt (see Chapman v.

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]; In re Montgomery (1970) 2 Cal.3d 863, 868 [87 Cal.Rptr. 695, 471 P.2d 15]), because neither witness provided significant, noncumulative testimony. Rushing testified merely that defendant had admitted hitting an elderly lady during the course of a burglary; Lewis was one of several witnesses (Gaines, Hall, Mikles, McFarland) in whom defendant confided regarding his role in the murders. Indeed, as we have noted, defendant’s own tape-recorded statement firmly established his complicity in these crimes. 13.

Exclusion of Prospective Jurors During the voir dire examination of the jury the trial court excused four prospective jurors who had stated that they would automatically vote against the imposition of the death penalty without regard to the evidence in the case. (See Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 785, 88 S.Ct. 1770].) One of these prospective jurors affirmatively stated that his feelings regarding the death penalty would not affect his ability to determine defendant’s guilt or innocence.

Defendant evidently acknowledges freely that the views of these prospective jurors regarding the death penalty disqualified them from determining the issue of penalty under the Witherspoon rule, and our independent examination of the voir dire proceedings discloses that indeed each of these persons was properly excluded under Witherspoon. Defendant does contend, however, that exclusion of these jurors resulted in a jury adjudicating guilt which was unrepresentative of the community and unduly biased in favor of conviction. Identical contentions were raised and rejected by us very recently in Hovey v.

Superior Court (1980) ante, page 1 [168 Cal.Rptr. 128, 616 P.2d 1301], and accordingly need not be reexamined here. 14. Waiver of Right to Present Mitigating Evidence Defendant asserts that the judgment of death must be set aside by reason of the failure of the trial court to obtain his personal waiver of the right to present mitigating evidence at the penalty phase of the trial. Defendant takes the position that his trial counsel’s

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