THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ANTHONY GURULE, Defendant and Appellant, 28 Cal. 4th 557

Opinion WERDEGAR, J. Raymond Anthony Gurule was convicted in 1989 in San Mateo County Superior Court of the first degree murder of Elliott Dolinka. (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury also sustained special circumstance allegations that defendant had previously been convicted of murder (§ 190.2, subd. (a)(2)) and that the murder had occurred during the commission of a robbery (§ 190.2, former subd. (a)(17)(i), now redesignated subd. (a)(17)(A)). The initial jury deadlocked on the issue of penalty, and the trial court declared a mistrial.

A second jury was empanelled. On October 18, 1990, the second jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) After considering the claims raised on appeal, we affirm the judgment in its entirety. I. Guilt Phase A. Facts 1. The Murder Barry Van Otten owned Barry’s Chevron, a service station in Daly City. He employed 15-year-old Elliott Dolinka as a part-time employee. On Saturday, May 15, 1982, Van Otten opened his station at 7:00 a.m., placing about $55 in the cash box from the safe in the office.

Van Otten had the only key to the safe. Dolinka arrived for work around 7:30 in the morning. Van Otten left shortly thereafter to obtain some auto parts. About 8:25 a.m., George Burton and Stan Moore drove into the station for gas. Burton noticed an Oldsmobile Cutlass parked at the station. Shirley Funk also drove into the station for gas at that time and recalled seeing Moore’s Cadillac and a light-colored, older American car. Dolinka, wearing his Chevron uniform, pumped gas for both Funk’s car and Moore’s Cadillac.

A young African-American man (Mark Garrison) paced around the station and also helped pump gas for customers, although he was not wearing a Chevron uniform. One customer, David McLaughlin, asked Dolinka if the young African-American man was a friend of his. Dolinka replied, “I don’t know who he is.” Around this time, another young man (defendant) came to the station and spoke with the African-American man. The second man was neither White nor Black, but possibly Asian or Hispanic. Van Otten called in around 8:35 a.m., and Dolinka reported everything was fine.

He said two people in a Cutlass had come in, needing auto repairs. Van Otten said to write up a work order and tell them he would be back at 10:00 a.m. to work on their car. Charles Arivett owned the Shell service station across the street from Barry’s Chevron. About 8:45 in the morning, Arivett heard someone making gurgling and choking sounds and emerged from his office to see Dolinka, bleeding profusely from his throat. Dolinka, whom Arivett identified from his Chevron uniform, was trying to speak but could only manage some gurgling sounds. Arivett told one of his employees, Reginald Ram, to call 911.

Arivett and his employees tried to stop the bleeding with some rags. Arivett then armed himself and went to the Chevron station, but found no one around. Police responded and found blood splatters and a pool of blood at Barry’s Chevron. Everything else was tidy; there was no sign of a struggle. It was later determined that about $73 had been taken from the cash box. No identifiable fingerprints were found at the crime scene. Despite Arivett’s assistance, Dolinka died from a loss of blood.

An autopsy revealed his neck had been cut almost to his neck vertebrae with a sharp knife, severing the carotid artery, jugular vein and esophagus. Dolinka would have sucked in blood when he tried to breathe, making it difficult to speak. His survival time would have been between one and five minutes. He bore no defensive wounds. Despite pursuing literally hundreds of leads, including obtaining a list of several thousand registered owners of 1967 to 1969 model Oldsmobile Cutlasses who lived in the Bay Area, police had no suspects for the crime from the date of its commission in May 1982 until November 1987.

Then, on November 4, 1987, there was a break in the case. On that date, Mark Garrison called Daly City police from Grand Prairie, Texas. Garrison told Sergeant George Quinn that he had been in the Bay Area in 1981 and 1982, that he had participated in a robbery in Daly City in which the victim was killed by slashing his throat, and that about $75 was taken. Garrison told Quinn he had a 1967 Oldsmobile Cutlass. Sergeant Quinn verified part of the story, finding the car was registered in Texas but had been issued several parking tickets in Oakland.

Sergeant Quinn and Detective Donald McCarthy flew to Texas to interview Garrison at his home. Garrison waived his Miranda rights and recounted his participation in Dolinka’s murder. He described his crime partner as well. Garrison exhibited no hesitancy in confessing his guilt to the police. Quinn and McCarthy obtained an arrest warrant. Garrison waived extradition and accompanied the officers back to California. Once back in California, the officers drove around with Garrison.

Garrison pointed out the location of Barry’s Chevron, which by that time was just a vacant lot, the station having been demolished in the intervening years. They looked for the location where Garrison said he had thrown the knife after fleeing the crime scene. He could not remember the exact location and provided some possible places, but a thorough search of those locations failed to locate a knife. The officers and Garrison crossed the Bay Bridge into Oakland and, following Garrison’s directions, drove to 30th Street and San Pablo Avenue, where he said an auto body shop once stood.

He said he had brought his car to the shop after having suffered an accident. Police later verified an auto body shop was once at that location, as Garrison had described. It was at that auto body shop that Garrison reported having met a man he knew only as “Apache.” Garrison explained that “Apache” assisted him in the robbery and murder of Dolinka. Garrison described “Apache” as having the name “Apache” tattooed on his arm, and as having come from Los Angeles.

With this information, police identified defendant Gurule as the man Garrison knew as “Apache.” Garrison directed the officers to his former residence, an apartment house in the 600 block of 30th Street in Oakland. He then tried to find defendant’s residence, settling on one house in which he thought “Apache” may have lived, although he was not sure. Police later verified defendant had lived in a house just four blocks away. 2. Garrison’s Testimony Garrison testified for the People. He said he came to California from Texas as part of the United States Army Reserve in 1982 or 1983.

At the time, he drove a 1970 or 1971 Oldsmobile Cutlass Supreme, brown with a white top. (Police confirmed Garrison had a 1971 tan Oldsmobile Cutlass Supreme with a white roof.) He got into a car accident and took his car to a body shop. There he met a man with a tattoo on his arm that said “Apache.” Garrison called the young man “Apache” and did not know his real name. Garrison told “Apache” he was short of money and was thinking of committing a robbery to obtain enough money to return to Texas. The two agreed jointly to commit a robbery.

Garrison explained to “Apache” that he had never been in trouble before so he thought it best to kill the victim to facilitate their escape, although if it was left to him, he would not kill the victim. According to Garrison, “Apache” replied, “Okay, it won’t be no problem, I’ll do it.” “Apache” indicated he had killed before and was ready to kill again. Lacking funds to buy a firearm, they decided to buy a knife. They eventually purchased a fish knife from a local Sears store in Oakland.

Garrison testified that a few days before the murder, he had been driving around Daly City looking for a job when he stopped at a service station to use the men’s room. He saw an employee putting money in a safe and got the idea to rob the station. The day of the murder, Garrison and “Apache” drove to Daly City and parked across the street from the service station. The plan was for “Apache” to hold the attendant while Garrison opened the safe. They waited for about two hours, but eventually abandoned the plan because the station was too busy.

Now improvising, the pair drove up the hill and saw another service station that looked promising because it had only one attendant. They stopped and may have had the attendant wash their windows. After leaving, Garrison and “Apache” agreed that Garrison should return alone and pretend something was wrong with his car. In accordance with the plan, Garrison dropped “Apache” off and returned, pulling his car into one of the service bays. He had the attendant check his oil and engaged him in conversation.

At some point, Garrison and the victim were standing around the car with the hood up when “Apache” entered the service bay. Garrison testified he nodded to “Apache,” who then grabbed the attendant by the neck. “Apache” had the knife because, according to Garrison, “I wasn’t going to do a murder. I wasn’t going to kill anyone.” While “Apache” was holding the attendant, Garrison asked where the money was.

The attendant replied there was a safe and a cash register in the front office. (Garrison later contradicted himself, saying the attendant said there was no safe.) Garrison went and retrieved the money from the register. Returning to “Apache,” Garrison told him: “Come on, it’s time to go,” and “Go ahead and do it.” “Apache” told Garrison to hold the attendant’s feet. Garrison put his feet on the victim’s ankles but then backed off, wanting no

part in the murder. Garrison heard a gurgling sound and got in the car. “Apache” joined him, and Garrison noticed he had blood on his shirt. The attendant ran out the door, and Garrison noticed the attendant had what looked like a circle around his neck. He admitted, though, that he did not see “Apache” actually cut the victim. Garrison drove out of the service station, on to the freeway, and back to Oakland. On the way, he threw the knife out the window. Once back in Oakland, the pair split the money. “Apache” left, and Garrison never saw him again.

Garrison then washed his car because there was blood on the outside. The next day he called his father in Texas, who sent Garrison some money, and Garrison drove back to Texas. He returned sometime thereafter to find out if the victim had died. Learning that the victim had died led Garrison eventually to contact the Daly City police and turn himself in. Asked if he saw the man he knew as “Apache” in court that day, Garrison replied: “I don’t think so. As I remember.” 3. Defendant’s Story Sergeant Quinn testified and recounted defendant’s description of the crimes, made during a police interrogation.

Defendant initially denied knowing Garrison, but after continued questioning, eventually admitted to having met Garrison in the body shop and to having discussed committing a robbery with him. The pair drove around Oakland and San Leandro looking for a place to rob. None were satisfactory so they went to San Francisco, identified a few possible places, and agreed to return the next day. Defendant confirmed that he and Garrison then purchased a knife at Sears. Defendant thought the knife was too big for his hand so he gave it to Garrison.

They returned to the San Francisco area, settling on Barry’s Chevron as their target. According to defendant’s recollection, the crime unfolded much as Garrison had described, with some significant exceptions. For example, according to defendant, he obtained a white canvas bag of money from the safe while Garrison held the attendant, and—more importantly—it was Garrison who was in charge and who wielded the knife. After getting the money, defendant said he jumped into the car.

At that point, Garrison asked, “What am I going to do?” Defendant told him to leave the victim and “Let’s go.” Garrison then turned to the attendant and asked, “Are you going to tell anybody?” The victim replied in the negative. According to defendant, Garrison then told him to “wait a minute” and ran back to the office. Defendant then heard Garrison yell to get a rag. The two men took the attendant to a storage area in the rear of the station. Defendant asked why Garrison needed a rag, and Garrison said, “I’m afraid he’s going to tell.” Defendant threw him a rag, then went back and started the car.

He heard the attendant say, “Take whatever you want, just don’t hurt me.” Thereafter Garrison ran to the car, and the pair made their getaway. Defendant asked what Garrison had done to the attendant, and Garrison stated, “I stuck him.” Defendant did not think much about it because, as they drove away, he saw the attendant standing in the doorway and there was nothing unusual about him. B. Pretrial Issues 1. Discovery of Garrison’s Psychiatric Records The primary witness against defendant was Mark Garrison.

Defendant contends the trial court’s failure to grant him access to Garrison’s psychiatric records in order to impeach him at trial violated several of defendant’s constitutional rights. a. Facts After Garrison contacted the police and volunteered information inculpating himself in the then unsolved 1982 robbery and murder at Barry’s Chevron, Attorney Peter Goldscheider was assigned to represent Garrison. Garrison’s apparent mental instability led the trial court to appoint Dr. Alfred Fricke, a clinical psychologist, to examine Garrison and determine whether he was competent to stand trial.

In a report dated January 31, 1988, Dr. Fricke found Garrison in the throes of a “psychotic decompensation” and thus incompetent to stand trial. Another appointed expert, Dr. Paul Roller, came to the same conclusion. Garrison was later sent to Chope Hospital for treatment after suffering injuries when another inmate attacked him. On his return to the county jail, Garrison was examined by Dr. George Wilkinson, a psychiatrist associated with Forensic Mental Health Services, a division of the county mental health system that provided mental health services for inmates housed at the San Mateo County jail. Dr.

Fricke reevaluated Garrison a few months later and concluded that, with the intervening treatment and medication, Garrison was now sane and competent to stand trial. Garrison then entered into a plea bargain in which he pleaded guilty to first degree murder, was sentenced to a term of 30 years to life in prison, and agreed to testify against defendant. Prior to trial, defendant sought discovery of the records of Dr. Fricke, Dr.

Wilkinson and Chope Hospital, generally seeking “[a]ll charts, test results, documents, records, memoranda, reports, etc., however recorded, which materials advert to, relate to, pertain to, reflect upon, and otherwise describe the psychiatric and emotional condition of Mark Anthony Garrison.” Garrison, through his attorney, Goldscheider, opposed disclosure of the records, claiming they were privileged under the psychotherapist-patient privilege. (Evid. Code, § 1014.) In addition, Goldscheider informed the court that because he had hired both Dr. Fricke and Dr.

Wilkinson as defense experts, any documents supporting their diagnoses were also privileged under the attorney-client privilege. (Id., § 954.) The trial judge took the matter under submission. At a later hearing, Goldscheider formally objected to disclosure of the Chope Hospital records on grounds of psychotherapist-patient privilege, and to disclosure of any records involving Dr. Fricke on both psychotherapist-patient and attorney-client privilege grounds, as well as on grounds of work product.

The trial court announced that defendant, through his counsel’s declaration in support of the subpoena, had established good cause, and it accordingly would examine in camera Garrison’s psychiatric records held by the Peninsula Psychiatric Associates (with whom Dr. Fricke was associated) and Chope Hospital. Goldscheider strenuously objected, claiming there was-no authority permitting the court to examine material privileged under the attorney-client privilege, even in camera.

When the trial court commented that a point in favor of disclosure was that Garrison’s case was already final, Goldscheider disagreed, explaining that Garrison’s plea bargain permitted the People to reopen the case if new evidence of his guilt developed.

The prosecutor confirmed that Garrison’s plea bargain “contain[s] a specific condition that if independent evidence is developed showing [he is] the actual killer . . . that plea could be set aside and both sides return to the status quo [ante].” The prosecutor, however, asserted that the district attorney’s office was prepared to offer use immunity to Garrison, promising not to use information contained in the challenged psychiatric records to reopen Garrison’s case or otherwise subject him to further prosecution. The matter was continued at Goldscheider’s request to permit him to do further research.

The trial court returned to the issue on August 14, 1989. As to the records of Dr. Fricke and Dr. Wilkinson, the court found they were covered by the attorney-client privilege. Rejecting defendant’s contention his Sixth and Eighth Amendment rights justified examining the Fricke and Wilkinson records in camera, the trial court held no in camera examination of such records was authorized. The court explained that defendant would have an adequate opportunity to impeach Garrison by exploring the terms of Garrison’s plea bargain.

As to the records from Chope Hospital, where Garrison had been sent for treatment following an inmate’s assault, the court found those records were covered only by the psychotherapist-patient privilege, not by the attorney-client privilege. The trial court informed the parties that it accordingly had examined the Chope Hospital records in camera, but had found no disclosable evidence. Defendant argued that even though Goldscheider had hired Dr. Fricke and Dr.

Wilkinson, thereby implicating the attorney-client privilege, the two doctors had examined Garrison by court appointment pursuant to sections 1367 and 1368 to determine Garrison’s competence to stand trial. As a result, he argued, any records produced in conjunction with that appointment could not be privileged. After hearing further argument, the court agreed that any work done by Dr. Fricke pursuant to court appointment and preceding his employment by Goldscheider also was potentially disclosable. Whether Dr. Wilkinson had examined Garrison pursuant to a

section 1367/1368 appointment was unclear. Although there was some dispute, the court determined that Dr. Wilkinson had been hired by Goldscheider as a defense expert for Garrison in November 1987, that Dr. Wilkinson had examined Garrison in January 1988 “in his capacity as a psychiatrist with San Mateo County Forensic Mental Health Services,” and that he had never examined Garrison prior to being retained by Goldscheider. In addition, the trial court had appointed Dr. Wilkinson (at Goldscheider’s request) to examine Garrison for competency pursuant to sections 1367 and 1368.

At a later hearing, Douglas Gray, an attorney in court representing Goldscheider, Dr. Fricke and Dr. Wilkinson, conceded that any psychiatric work undertaken pursuant to sections 1367 and 1368 would not be privileged. Gray stated his belief that Dr. Wilkinson had never examined Garrison pursuant to court appointment under sections 1367 and 1368, but that he may have examined Garrison in his capacity as the psychiatrist on call for Forensic Mental Health Services. This examination might have occurred sometime after Dr. Wilkinson was hired by Goldscheider.

The trial court expressed a tentative view that any material flowing from Dr. Wilkinson’s contact with Garrison in Wilkinson’s capacity as a representative of Forensic Mental Health Services would fall outside the attorney-client privilege, but would be within the psychotherapist-patient privilege. Defendant unsuccessfully sought review of the trial court’s decision in the Court of Appeal. Defense counsel later urged the trial court to review its earlier decision finding no disclosable evidence in Garrison’s Chope Hospital records.

The trial court agreed and released a few pages that indicated a nurse had noted that Garrison’s memory, insight and judgment seemed impaired. The next day, Gray appeared and represented that he had combed through Dr. Fricke’s notes and reports and segregated those materials associated with Dr. Fricke’s examination and diagnosis of Garrison in connection with the

section 1367/1368 hearing—which were disclosable—and those that were associated with Dr. Fricke’s employment as an expert hired by Goldscheider, which were not. The court made arrangements for defense counsel to obtain copies of the disclosable material. At a subsequent foundational hearing, the trial court reaffirmed its ruling that material generated by Dr. Fricke in connection with his court appointment and the determination of Garrison’s competency to stand trial were disclosable, but that anything else was the product of Dr. Fricke’s employment as a defense expert and was thus privileged.

At a foundational hearing to determine what part, if any, of Dr. Wilkinson’s notes was potentially disclosable, Attorney Chris Motley appeared from the county counsel’s office, representing Dr. Wilkinson in his capacity as an employee of Forensic Mental Health Services. Motley had Dr. Wilkinson’s reports and other material associated with services provided to Garrison by Forensic Mental Health Services.

The trial court reviewed the material in camera, considered its relevance, and concluded that, on balance, defendant’s right to a fair trial and his need fairly to impeach Garrison outweighed the psychotherapist-patient privilege. The court ordered almost all the material in Forensic Mental Health Services’ records disclosed, with the exception of a recent report concerning some trivial matters. Included in the material disclosed were reports by Dr. Wilkinson and two other psychiatrists, Dr. Sayed Hamed and Dr. Aldo Lubrano, and a clinical psychologist, Dr. Richard Hayward.

The reports indicated, among other things, that Garrison suffered from “episodes of auditory hallucinations and paranoid delusions,” but that, with medication, these symptoms diminished. Dr. Wilkinson testified before the jury later that day. He explained that he had examined Garrison, at the suggestion of Dr. Hayward, after Garrison had experienced problems with other inmates, reported hearing voices in his head, and seemed confused and disorganized. Dr.

Hayward had examined Garrison at Chope Hospital’s psychiatric emergency room, where Garrison had been sent after a fight with another inmate, and had started him on a small dose of Ativan, a mild tranquilizer. Garrison was then returned to the county jail, where Dr. Wilkinson examined him the next day and found that he had difficulty organizing his thoughts and seemed to lose his train of thought. Garrison also reported hearing voices in his head and experiencing paranoid delusions, usually that people in the jail were going to harm him. Dr.

Wilkinson suspected Garrison was suffering from paranoid schizophrenia, and Garrison agreed to begin taking the antipsychotic drug, Navane, in addition to his Ativan. He later switched to the antipsychotic drug, Haldol. After taking the medication, Garrison reported that he was not hearing voices any more, although he seemed more delusional. On cross-examination, the prosecutor elicited from Dr.

Wilkinson the opinion that Garrison appeared honest, although he qualified that opinion by explaining that he was talking about honesty or dishonesty as a “conscious voluntary behavior,” not the type of “disordered responses” he might get when Garrison was psychotic. One of the delusions from which Garrison suffered was that he would miraculously be released from jail. Dr. Wilkinson also admitted that it was difficult to conclude Garrison was suffering from paranoid delusions because he had in fact been actually harmed by another inmate, receiving second degree bums when the inmate threw hot water in his face.

He also got into fights while in jail. Following Dr. Wilkinson’s testimony, the trial judge stated he was satisr fied with his ruling on the privilege question because of the amount of mental health material defense counsel was able to place in the record to impeach Garrison’s credibility. Defendant then called Dr. Fricke to the stand. Fricke affirmed he had been appointed by the court to examine Garrison for competence to stand trial. He had interviewed Garrison on December 24, 1987, and submitted a report dated January 31, 1988, concluding Garrison was incompetent to stand trial. Dr.

Fricke explained that he had administered, or tried to administer, several psychological tests, the results of which indicated a severe mental disturbance. Reading from his report, Dr. Fricke concluded: “Mr. Garrison was psychotic at the time of this evaluation. He was disoriented and showed significant confusion. He showed evidence of thought disorder both in process and in content.” He also “engaged in bizarre rituals” involving hand movements and “showed psychomotor retardation [i.e., abnormally slow body movement], was humorless, and spoke in monosyllables.

He . . . was perseverative [i.e., engaged in repetitive movements] and showed . . . gross disorganization in thinking which is clearly a result of his mental state.” At a subsequent evaluation in March 1988, Dr. Fricke reported that Garrison had “improved significantly” and was competent to stand trial. b. Discussion By denying him full access to Garrison’s psychiatric records, defendant claims the trial court violated his constitutional right to confront the witnesses against him. (U.S.

Const., 6th & 14th Amends.) Of course, the mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness’s ability to perceive, recall or describe the events in question. (People v. Herring (1993) 20 Cal.App.4th 1066, 1072 [25 Cal.Rptr.2d 213]; People v.

Anderson (2001) 25 Cal.4th 543, 608 [106 Cal.Rptr.2d 575, 22 P.3d 347] (cone. opn. of Kennard, J.).) The trial court determined at the outset that some of the records defendant sought might be privileged by the psychotherapist-patient privilege. (Evid. Code, § 1014.) The court decided it should examine in camera those psychiatric records of Garrison’s that were not additionally privileged from disclosure by the attorney-client privilege. The court believed it should weigh the need for Garrison’s privacy as a patient against defendant’s right to cross-examine him to ensure a fair trial.

In so ruling, the trial court relied on People v. Reber (1986) 177 Cal.App.3d 523 [223 Cal.Rptr. 139], which stated the prevailing rule at the time of defendant’s trial. After defendant’s trial, however, we disapproved Reber in People v. Hammon (1997) 15 Cal.4th 1117 [65 Cal.Rptr.2d 1, 938 P.2d 986] (Hammon). We explained in Hammon: “The court in Reber believed the confrontation clause of the Sixth Amendment (U.S. Const., 6th Amend.), as interpreted in Davis v.

Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347], required pretrial disclosure of privileged information when the defendant’s need for the information outweighed the patient’s interest in confidentiality. In authorizing disclosure before trial, however, Reber went farther than Davis required, with insufficient justification.” (Hammon, supra, 15 Cal.4th at p. 1123.) We explained that Davis v. Alaska addressed trial rights, not pretrial disclosure of information, and that a broader reading of Davis “is called into question in light of the United States Supreme Court’s decision in Pennsylvania v.

Ritchie (1987) 480 U.S. 39 [107 S.Ct. 989, 94 L.Ed.2d 40]. . . , which was handed down shortly after Reber, supra, 177 Cal.App.3d 523.” (Hammon, supra, at p. 1124.) There was no majority opinion in Pennsylvania v. Ritchie, but, after that case, “it is not at all clear ‘whether or to what extent the confrontation or compulsory process clauses of the Sixth Amendment grant pretrial discovery rights to the accused.’ (People v.

Webb (1993) 6 Cal.4th 494, 517-518 [24 Cal.Rptr.2d 779, 862 P.2d 779]. . . .)” (Hammon, supra, at p. 1126.) Under Hammon, supra, 15 Cal.4th 1117, psychiatric material is generally undiscoverable prior to trial. Defendant, then, received more discovery than he was legally entitled to, for he received the records generated by Dr. Fricke in connection with his examination of Garrison for competence (Evid. Code, § 1017, subd. (a)), the Chope Hospital records, and those records of Dr. Wilkinson generated in connection with his treatment of Garrison at the San Mateo County jail.

Defendant also received virtually all of Garrison’s Forensic Mental Health Services records, and he fails to show how denial of access to the few records that were withheld prejudiced him. Despite the amount of psychiatric material the trial court disclosed with which defendant could impeach Garrison, defendant contends his constitutional confrontation rights were nevertheless violated because he was not given access to the material generated by Dr. Fricke and Dr. Wilkinson in connection with their employment by Attorney Goldscheider as defense experts for Garrison. Thus, for example, Dr.

Fricke apparently generated some material from examinations of Garrison that were unrelated to the trial court’s appointment. Similarly, Dr. Wilkinson apparently treated or examined Garrison at times unrelated to his role as a mental health professional who provided services to the San Mateo County jail. The trial court found those treatment records were privileged by the attorney-client privilege (Evid. Code, § 954) and thus not subject to in camera inspection or a balancing of their importance with defendant’s interest in a fair trial. The trial court was correct.

At the outset, we note that communications privileged by Evidence Code

section 954 include “confidential communications made by the client to a physician for the purpose of transmitting such information to the attorney.” (People v. Lines (1975) 13 Cal.3d 500, 510 [119 Cal.Rptr. 225, 531 P.2d 793]; City & County of S. F. v. Superior Court (1951) 37 Cal.2d 227, 237 [231 P.2d 26, 25 A.L.R.2d 1418]; 2 Witkin, Cal. Evidence (4th ed. 2000) Witnesses, § 122, pp. 378-379.) Thus, communications Garrison made to Dr. Fricke and Dr. Wilkinson in their capacity as defense experts hired by Goldscheider were fully privileged by the attorney-client privilege.

Although it is unusual for a potential defendant in a murder case (Garrison) to hire as his own expert both the court-appointed mental health expert (Dr. Fricke) and the expert who has provided mental health services to jail inmates (Dr. Wilkinson), we cannot say on this record that such employment necessarily deprived defendant of his constitutional right to confront Garrison.

Communications potentially can be privileged under both the psychotherapist-patient privilege and the attorney-client privilege, and even if the former privilege is waived or otherwise inoperative, the latter privilege will still operate to render the communication confidential and privileged. (People v. Lines, supra, 13 Cal.3d at p. 513.) Thus, the attorney-client privilege can apply here even though we conclude the psychotherapist-patient privilege does not apply by virtue of Evidence Code

section 1017. “The attorney-client privilege is one of the oldest recognized privileges for confidential communications” (Swidler & Berlin v. United States (1998) 524 U.S. 399, 403 [118 S.Ct. 2081, 2084, 141 L.Ed.2d 379]) and is “one which our judicial system has carefully safeguarded with only a few specific exceptions” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600 [208 Cal.Rptr. 886, 691 P.2d 642]). We have held that a criminal defendant’s right to due process does not entitle him to invade the attorney-client privilege of another. (People v.

Johnson (1989) 47 Cal.3d 1194, 1228 [255 Cal.Rptr. 569, 767 P.2d 1047].) To the extent defendant claims his right to confrontation or due process entitles him to gain access to the confidential communications between Garrison, his attorney, and his defense experts, he is thus mistaken. Moreover, even if defendant were entitled to disclosure of more psychiatric background material, any error in this regard was harmless beyond a reasonable doubt in light of the large amount of material already disclosed and made available to impeach Garrison.

The jury was informed that Garrison was psychotic at the time he was arrested, that he was taking tranquilizing medication as well as antipsychotic medication, that he originally was found incompetent to stand trial, that he heard voices in his head (auditory hallucinations), that he was paranoid and believed inmates were intending to do him harm, that he engaged in unusual and repetitious hand movements, and that he was generally confused and disorganized in his thinking.

The jury was also informed of the terms of Garrison’s plea agreement with the prosecution and the incentive such agreement may have created to divert the majority of the blame for the crime towards defendant. We assume the jury considered these factors in reaching a decision on Garrison’s credibility. We conclude any error in failing to disclose more of Garrison’s psychiatric records was harmless. Defendant also contends the trial court’s denial of full disclosure of Garrison’s psychiatric records denied him a fair appeal.

Although we have stressed “the importance of an adequate record as one of the basic tools of an effective appeal” (In re Steven B. (1979) 25 Cal.3d 1, 8 [157 Cal.Rptr. 510, 598 P.2d 480]; see generally Cal. Rules of Court, rule 39.51), that is not to conclude the record is inadequate unless the defendant obtains full disclosure of a third party’s psychiatric records. As we have explained, defendant obtained the records underlying Dr. Fricke’s competency examination of Garrison, Dr. Wilkinson’s treatment records while the doctor worked for Forensic Mental Health Services, and the records from Chope Hospital.

In light of this level of disclosure of potentially impeaching material, as well as other information (such as the terms of Garrison’s plea agreement) with which defendant could have undermined Garrison’s credibility, we disagree that the absence of even fuller disclosure created an “insuperable barrier to meaningful appellate review.” We have reviewed the sealed records in camera, and nothing contained therein alters our conclusion that further disclosure was not necessary to ensure defendant obtained a fair appeal. 2. Problems with Pretrial Contact with Garrison a.

Discovery of the prosecutor’s pretrial interview notes Prior to trial, defendant moved for discovery of all witness statements and notes of witness interviews, including all notes of interviews with Garrison. The trial court granted the motion, but it later came to light that the prosecutor, in the presence of police investigators, had twice interviewed Garrison prior to trial, preparing him for testifying in court, but had not divulged any notes of the interviews to defense counsel.

Defendant objected and alleged that Garrison might have made statements helpful to the defense at these interviews and that the prosecutor had acted in bad faith in failing to disclose this information. The trial court found the information obtained during the interviews was subject to the existing discovery order, but that the prosecutor had acted in good faith in believing otherwise. The court accordingly ordered the prosecutor to reconstruct the interviews and make the information obtained from Garrison available to defense counsel.

When defense counsel received the information, he agreed with the trial court that it yielded nothing of great importance. Defendant argues the prosecutor intentionally refrained from taking notes during these pretrial interviews with Garrison to evade his continuing duty to provide discovery to defendant. We reject the claim because nothing in the record indicates the prosecution intentionally refrained from taking notes. b.

Denial of defendant’s request to interview Garrison before trial Defendant claims the denial of full discovery of Garrison’s psychiatric records and the prosecutor’s interview notes was aggravated by the trial court’s denial of defense counsel’s request to interview Garrison before trial. In light of the perceived precarious state of Garrison’s mental health, all parties had some concern about his anticipated testimony before the jury. Defense counsel asked to have an opportunity to interview Garrison, but the trial court impliedly denied his request. Defendant now claims the trial court erred in so ruling.

Defendant identifies no authority, and we are aware of none, that would have permitted the trial court to authorize defense counsel to interview Garrison before trial. Garrison was represented by Goldscheider at that time, and nothing in the record indicates whether or not he would have permitted the interview or advised Garrison to waive his privilege against compelled self-incrimination. Defendant was apprised of Garrison’s pretrial statements to police and the prosecutor, and was given the opportunity to question him at trial. He was entitled to nothing more. 3.

Voir Dire of Jurors Defendant next complains about alleged errors connected with the selection of jurors at the guilt phase of the trial. (Because this jury hung on penalty, it was not the jury that eventually imposed the death penalty.) a. Hovey voir dire Defendant first contends the Hovey voir dire (Hovey v.

Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301]), by which prospective jurors are asked individually about their views on the death penalty and may be excused if they would not vote to impose the death penalty under any circumstances, violated the standards laid down by the high court in Witherspoon v. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776], (But see Wainwright v.

Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841] [juror may be excused if “the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath’ ”].) Additionally, he claims that the Hovey procedure results in a jury that does not represent a fair cross-section of the community, in that the jury will contain a disproportionate share of persons who are “submissive in the face of authority” and “who cannot approach the prosecution’s evidence in an appropriately skeptical and inquiring frame of mind.” Relying on Justice Marshall’s dissenting opinion in Lockhart v.

McCree (1986) 476 U.S. 162, 184 [106 S.Ct. 1758, 1770-1771, 90 L.Ed.2d 137], defendant argues the Hovey voir dire produced a jury that was more prone to return a guilty verdict and more likely to exclude members of racial minorities. He also argues the prosecutor’s ability to exercise peremptory challenges exacerbated these problems. At the threshold, it appears defendant failed to object to the Hovey voir dire on these grounds and thus failed to preserve these issues for appeal. (People v.

Avena (1996) 13 Cal.4th 394, 413 [53 Cal.Rptr.2d 301, 916 P.2d 1000].) Defendant, however, contends in his reply brief that if we find he failed to preserve the issue for appeal, we should find his trial counsel were constitutionally ineffective for failing to preserve the issue. We need not address this contention because even assuming for argument the issue is properly before us, we find no error, as it is now settled that the Hovey voir dire procedure is constitutional and does not deny a capital defendant his right to an impartial or a representative jury. (People v.

Stanley (1995) 10 Cal.4th 764, 797-798 [42 Cal.Rptr.2d 543, 897 P.2d 481]; People v. Cummings (1993) 4 Cal.4th 1233, 1279 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Nor does the procedure improperly discriminate against racial minorities (People v. Johnson, supra, 47 Cal.3d at pp. 1214-1215) or produce a conviction-prone or death-penalty-prone jury (People v. Carrera (1989) 49 Cal.3d 291, 331 [261 Cal.Rptr. 348, 777 P.2d 121]). Finally, the prosecutor’s use of peremptory challenges does not exacerbate the alleged problem. (Ibid.) b.

Informing the jurors defense counsel expected them to return a guilty verdict Defendant next contends his defense counsel were constitutionally ineffective in informing some jurors, during questioning on voir dire, that they expected the jury to return a guilty verdict, which would require them to participate in a penalty phase. Defendant overstates the number of times counsel made such admissions, but that makes no difference. Counsel may have concluded that honesty and candor with the jurors was necessary so as not to lose credibility with them.

Counsel may also have seen no disadvantage to such admissions given that defendant had admitted he knowingly participated in the robbery and murder of Dolinka (although he claimed Garrison was the actual killer) and was thus clearly guilty of murder with special circumstances at a minimum, and the trial court had ruled that defendant’s admissions would not be excluded from trial. In any event, the record does not indicate counsel’s reasons for making such admissions to some prospective jurors, so we reject the contention that counsel were ineffective. (See People v.

Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [62 Cal.Rptr.2d 437, 933 P.2d 1134] [issue of counsel’s effectiveness more appropriately raised in a petition for a writ of habeas corpus].) c. Defendant allegedly was tranquilized during voir dire Defendant contends the trial court committed reversible error by conducting voir dire while he was under the influence of tranquilizers to such an extent that we should conclude he was not “present.” (See § 977, sub.d. (b) [“The accused shall be personally present”]; Riggins v.

Nevada (1992) 504 U.S. 127 [112 S.Ct. 1810, 118 L.Ed.2d 479].) He contends the trial court characterized him as looking “totally droopy” and thus should have stopped the proceedings. He is mistaken: it was defense counsel who so characterized defendant.

The trial court disagreed with counsel’s assessment, noting it did not see a “great difference in [defendant’s] appearance.” The trial court discussed the matter with defense counsel, Philip Barnett, and counsel assured the court that defendant was mentally and physically able to participate despite having taken some tranquilizers two nights before to help him sleep and another medicine the next night. The trial court assured defendant that if he felt ill, uncomfortable or dizzy, it would halt the proceedings. Later that afternoon, defendant stated he felt all right.

We thus reject the claim that the trial court improperly allowed voir dire to proceed when defendant was severely impaired by his medication with tranquilizers, for there is no substantial evidence his medication had a palpable effect on him. C. Trial Issues 1. Issues Involving Defendant’s Confession Police spoke to defendant on June 17 and 21, 1988. The first interview was partially tape-recorded, the second fully recorded. Only evidence from the first interview was admitted at trial. In that interview, defendant admitted critical facts about his participation in the crimes of which he now stands convicted.

He claims on appeal that admission at trial of his statements to police on June 17, 1988, violated his rights under various provisions of the federal Constitution. His primary claim is that police violated his rights as set forth in Miranda, supra, 384 U.S. 436. As we explain, he is mistaken. a. Facts Prior to trial, defendant moved to exclude the statements he had given to police on June 17, 1988. He claimed: (

i) critical portions of the interview intentionally were not recorded by the investigating officers, thereby compromising his ability to litigate the question of the voluntariness of his confession in violation of his right to due process; (ii) his Miranda waiver was invalid because the officers deceived him by misrepresenting that they were investigating a robbery instead of a capital murder; and (iii) the confession was involuntary. The following information was ascertained at the hearing on defendant’s motions.

Investigating the information obtained from Garrison, Sergeant Quinn concluded that the man known as “Apache” was defendant. Quinn located defendant in Folsom State Prison, where he was serving a term for an unrelated second degree murder. Quinn and Detective McCarthy traveled to Folsom on June 17, 1988, to interview defendant. Quinn had a tape recorder in a briefcase; before defendant arrived in the interview room, he recorded the time and date on the tape. The recorder was otherwise hidden from view. Defendant arrived, and the officers engaged him in some small talk to put him at ease.

Sergeant Quinn then read defendant his Miranda rights from a card supplied by the City of Daly City. Defendant said he understood his rights, read the card himself, and signed it in the officers’ presence. He exhibited no reservations or hesitancy. This part of the interrogation was not recorded, but after defendant waived his rights Quinn surreptitiously turned on the recorder. Quinn explained the secrecy, testifying that some people do not speak as freely when they know they are being recorded.

When the tape ran out, Quinn did not replace it for fear of distracting defendant, who was showing signs of nervousness. Detective McCarthy, however, took notes of the entire interrogation. Quinn began the interrogation by informing defendant he was interested in discussing a robbery that had occurred some years before. Only after they began discussing the case did Quinn reveal there also had been a homicide. McCarthy informed defendant the case carried the potential for the death penalty, and defendant indicated he understood.

The officers informed defendant that they had enough evidence to charge him with the crime and the interview would be the only time he could tell his side of the story because, once he was arraigned, “we would not be able to talk to him again because he would have to have a lawyer around.” McCarthy explicitly denied promising defendant he would be arraigned on lesser charges or receive less time in prison if he told his side of the story, although he advised defendant that Garrison’s attorney was attempting to obtain a plea bargain for his client.

The officers said that if defendant wanted to tell his side of the story, they would bring it to the attention of the prosecuting attorney. During the interview, defendant initially denied knowing Garrison, then admitted knowing him only vaguely. As the interview progressed, defendant admitted to a stronger acquaintance with Garrison and to participation in the robbery, but denied the murder.

This change may have been prompted by the officers’ telling defendant that Garrison was placing primary blame for the robbery and murder on defendant, and that witnesses had placed defendant in the vicinity of the crime shortly before the murder. Both Sergeant Quinn and Detective McCarthy expressly denied threatening defendant in any way. Both officers also expressly denied promising defendant leniency, immunity or a reward should he confess. The interrogation began around 10:00 in the morning and ended around 1:00 in the afternoon. The interrogation was continuous, but breaks were taken.

The officers returned on June 21, 1988, with a representative from the prosecutor’s office, and defendant reiterated his statement. This interview was recorded in its entirety. The parties stipulated the trial court could listen to and consider the recording of the June 17th interview, the transcript of the recording, the Miranda warning card, Detective McCarthy’s notes, and the transcript of the preliminary examination. Following the hearing, the trial court denied defendant’s motions.

The court indicated its ruling would be the same whether the People’s burden was beyond a reasonable doubt or by a preponderance of the evidence. b.

Miranda/involuntariness Defendant first contends “the prosecution failed to make even a threshold showing [of voluntariness] because they failed to demonstrate that appellant was informed of his Miranda rights.” We recently explained the applicable law: “When reviewing a trial court’s decision on a motion that a statement was collected in violation of the defendant’s rights under Miranda, supra, 384 U.S. 436, we defer to the trial court’s resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence. [Citation.] Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement was obtained in violation of Miranda's rules [citation], that is, whether (assuming the defendant was in custody) the statement was preceded by the now-famous admonition of Miranda rights: the defendant has the right to remain silent, any statement he might make can be used against him, he has the right to the presence of an attorney, and an attorney will be provided at state expense if he cannot afford one. (Dickerson v.

United States (2000) 530 U.S. 428, 435 [120 S.Ct. 2326, 2331-2332, 147 L.Ed.2d 405].) [f] If a custodial defendant requests counsel, all questioning must cease. (Edwards v. Arizona (1981) 451 U.S. 477, 482 [101 S.Ct. 1880, 1883-1884, 68 L.Ed.2d 378].) Statements made by a custodial defendant in the absence of Miranda warnings are inadmissible in the prosecution’s case-in-chief.” (People v. Weaver (2001) 26 Cal.4th 876, 918 [111 Cal.Rptr.2d 2, 29 P.3d 103].) Neither side disputes that Quinn and McCarthy were interrogating defendant or that defendant was in custody.

The only issues, then, are whether substantial evidence supports the trial court’s conclusion that defendant was given Miranda warnings before giving his June 17th statement, whether he invoked his right to counsel, and whether he was tricked into waiving his rights by improper police deception. Both officers testified that Quinn informed defendant of his rights, and their testimony was supported by the actual card defendant had signed. The trial court specifically accepted the officers’ testimony as truthful; consequently, substantial evidence supports the court’s resolution of the issue.

Normally this would suffice to conclude no violation of the familiar Miranda rules occurred. Defendant contends, however, that Quinn’s failure to record the Miranda admonition and defendant’s waiver is suspicious. Indeed, defendant argues Quinn took quite a bit of trouble not to record the Miranda admonition and waiver. As indicated, however, Quinn explained the circumstances that led to the partial recording: he secretly turned on his hidden tape recorder after defendant had waived his rights and, when the tape ran out, decided against putting in a new tape for fear of distracting defendant.

We assume the trial court considered the plausibility of this explanation together with Sergeant Quinn’s credibility before it ruled in the People’s favor. We also assume the court considered the fact that the officers had engaged in small talk before interrogating defendant. Unlike defendant, we cannot assume such pre-interview banter necessarily suggests the Miranda warning was jokingly delivered or was otherwise conveyed in a manner lacking the solemnity defendant argues such warnings require. The officers explained they wished to place defendant at ease before starting the interrogation.

The trial court observed the officers testify, and we assume it evaluated their credibility on this issue. To the extent defendant suggests that by engaging in small talk Quinn and McCarthy improperly “soften[ed] him up” before extracting a Miranda waiver, we disagree. First, we find defendant did not raise this objection in his moving papers below. “As a result, the parties had no incentive to fully litigate this theory below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings” (People v.

Ray (1996) 13 Cal.4th 313, 339 [52 Cal.Rptr.2d 296, 914 P.2d 846]), such as the nature and effect of the type of small talk in which the officers engaged. We conclude the objection was not preserved for appeal. (Ibid.) Second, even assuming for argument the issue was preserved, we find it lacks merit.

We have explained that “[w]hen the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary for the same reason that an incriminating statement made under police interrogation without a Miranda warning is deemed to be involuntary.” (People v. Honeycutt (1977) 20 Cal.3d 150, 160-161 [141 Cal.Rptr. 698, 570 P.2d 1050].) But unlike in Honeycutt, neither Quinn nor McCarthy discussed the victim.

Nor is there any other evidence suggesting that the manner in which Quinn and McCarthy engaged in small talk overbore defendant’s free will. Honeycutt is thus distinguishable. Defendant argues due process requires application of a blanket rule requiring that all interrogations, including the Miranda warnings and waivers, be tape-recorded to facilitate later determinations of voluntariness. He cites Stephan v. State (Alaska 1985) 711 P.2d 1156 in support.

While we have no wish to discourage law enforcement officials from recording such interrogations, we have already found that such a blanket rule is not required to protect the due process rights of those being interrogated (People v. Holt (1997) 15 Cal.4th 619, 663-665 [63 Cal.Rptr.2d 782, 937 P.2d 213]), and defendant fails to raise any argument convincing us that Holt was incorrectly decided.

Defendant next contends his Miranda waiver was vitiated by Quinn and McCarthy’s promise that anything defendant told them, “we’re going to keep between us.” He claims such a promise was “diametrically opposed to the statement that whatever [defendant] told the police officers could and would be used against him in a court of law.” If the police had actually promised defendant his statements would not be used against him, contrary to the earlier Miranda warning, an error of constitutional dimension would have occurred. (See, e.g., People v.

Quartermain (1997) 16 Cal.4th 600 [66 Cal.Rptr.2d 609, 941 P.2d 788].) As with the previous claim that the officers softened him up, defendant did not raise in his moving papers below the claim that he spoke in reliance on the officers’ promise not to divulge his statements to anyone. Accordingly, the officers were not asked to explain the meaning of their assertion that they would “keep between us” defendant’s revelations. Consequently, the objection was not preserved for appeal. (People v.

Ray, supra, 13 Cal.4th at p. 339.) Even were we to assume the issue is properly before us, we find defendant’s claim cannot be sustained, for the record does not support a conclusion that the officers made a promise to hold defendant’s statements in confidence, or that defendant understood their comments as constituting such a promise. To begin with, the record is somewhat ambiguous and should be placed in context. In the course of the long interrogation, Detective McCarthy explained to defendant that Garrison had placed the blame for the crime primarily on defendant.

McCarthy explained that “[w]e’re interested in this guy, Mark [Garrison]. OK, obviously we can’t tell you everything. But he knows certain things about this case . . . too.” McCarthy told defendant the district attorney had not yet charged Garrison because of Garrison’s allegations suggesting defendant was the actual killer. When defendant retorted, “That ain’t trae,” McCarthy responded: “Well, we know [it] isn’t. Only because of, No. 1, what he said, and No. 2 what some other people have told us.

OK, again, I can’t go into what the other people have told us because, what you tell us we’re going to keep between us. Just like if somebody else tells us something, you know, that’s why like I told you, we’re going to know.” (Italics added.) Despite this fleeting comment, defendant continued to deny his involvement. Placed in context, McCarthy’s statement that “what you tell us we’re going to keep between us” is but a fleeting comment during a long interrogation that was meant to communicate to defendant why the officers could not reveal everything Garrison had told them.

Reading the whole transcript, we conclude McCarthy did not promise defendant that his statements would remain confidential, nor did defendant understand McCarthy’s comment to mean that all that was said would remain confidential. Finally, defendant makes no showing he understood McCarthy’s brief comment to vitiate the Miranda warning given just minutes earlier. We conclude that, assuming the issue was preserved for appeal, the officers did not promise defendant his comments would remain confidential. Accordingly, we find no Miranda violation.

To the extent defendant separately contends his statements were involuntary due to the officers’ promises, we also find the trial court’s rejection of this claim was proper. c. Admission of incomplete recording of defendant’s first interview As noted, the June 17, 1988, interview was only partially tape-recorded.

The prosecution offered the entire tape recording as evidence, but an issue arose as to the admissibility of extraneous statements contained in the recording: the prosecutor was concerned about defendant’s self-serving statements, and defense counsel was concerned about the officers’ hearsay and accusatory insinuations. It was agreed the parties would edit out offending statements.

In addition, defendant argued the recording of the second police interview with him, conducted a few days after the June 17th interview, should (with the exception of the discussion of defendant’s prior murder) be admitted without any redactions because the entire interview had been recorded. The prosecution disagreed, arguing the intervening days between the first and second police interrogations allowed defendant to think about how to slant his story to portray his involvement in the crime in the best light. The prosecution ultimately did not introduce the second recording into evidence.

Defendant argues that the trial court committed a number of errors by admitting the redacted recording of the June 17th interview. He first claims the redacted recording was so distorted and misleading that it “should certainly have been excluded as more prejudicial than probative.” We assume defendant is referring to Evidence Code

section 352, but he nowhere asserts he made such an objection at trial. Moreover, even if such a claim was preserved, the gist of defendant’s argument is that the full recording included much information favorable to him that had been redacted.

For example, in the interview defendant claimed he had at first been less than forthcoming with police because he had gotten married while in prison, vowed to change his life, and just wanted to serve his present term and join his wife; he had discouraged Garrison from harming Dolinka; he was not personally responsible for the stabbing; and that when he saw Dolinka emerge from the service station, he did not appear to be badly hurt. Even had defendant moved to exclude the redacted June 17th recording pursuant to Evidence Code

section 352, the trial court should properly have denied the motion. The “fuller picture” defendant argues should have been presented to the jury consisted of self-serving hearsay not otherwise admissible at trial. (See Evid. Code, § 1220 [to qualify as a party admission, a hearsay statement must be introduced against the declarant].) Defendant was free to present this information by taking the stand himself.

To allow him to present this evidence through admission of the unredacted recording would have allowed him to present favorable evidence without subjecting himself to cross-examination. “ ‘A defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.’ ” (People v. Edwards (1991) 54 Cal.3d 787, 820 [1 Cal.Rptr.2d 696, 819 P.2d 436], quoting People v.

Harris (1984) 36 Cal.3d 36, 69 [201 Cal.Rptr. 782, 679 P.2d 433] (plur. opn. of Broussard, J.).) Defendant further argues that “[providing the jury with this type of truncated, distorted, and misleading ‘confession’ deprived [him] of state and federal due process, and of his Sixth Amendment right to a fair trial.” It again appears that defendant did not preserve this issue for appeal by raising the constitutional claim below.

Assuming, however, for argument the issue is properly before us, we find it lacks merit: defendant’s trial was not rendered fundamentally unfair nor was he deprived of his Sixth Amendment rights merely because the trial court did not allow him to spread before the jury his own hearsay statements insulated from cross-examination.

Defendant also contends that, by playing for the jury the edited version of the recording of his June 17th statements, and also ruling the prosecution was not obligated to introduce the recording of his June 21st interview with police, the trial court subjected him to unfair pressure to testify, thereby burdening his constitutional right to refrain from testifying. Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].) Defendant exaggerates his dilemma.

First, defense counsel willingly participated in the redaction of the June 17th recording because the recording contained information damaging to his client, such as the fact defendant was already in prison when the interview occurred. Second, the trial court was correct in ruling that it could not force the People to introduce the second recording into evidence. Finally, even assuming undue pressure was placed on defendant to testify, he apparently was able to withstand the pressure, for he did not take the stand. Accordingly, there was no violation of defendant’s Fifth Amendment rights. d.

Alleged Beagle error Defendant had previously been convicted of rape in 1978, attempted grand theft from the person in 1982, grand theft from the person in 1984, and murder in 1986. Anticipating that the prosecution would introduce such evidence as impeachment should he testify, defendant moved to exclude evidence of these convictions pursuant to Evidence Code

section 3 52. His motion addressed the law both pre-Proposition 8 (People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1] (Beagle)) and post-Proposition 8 (People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111] (Castro)). The trial court discussed the motion as a “Castro motion” and ruled all four convictions were admissible for impeachment purposes. Defendant later sought reconsideration of the ruling, arguing that the case was governed not by Castro, supra, 38 Cal.3d 301, but by pre-Proposition 8 law.

The court agreed and, this time applying Beagle, supra, 6 Cal.3d 441, again ruled defendant’s prior felony convictions would be available for impeachment. The court explained that it still believed witnesses should not be allowed to testify under a false aura of credibility, and, “[w]ith that thinking, and on rebalancing in light of Beagle, the Court does reconsider its ruling, and nevertheless, rules similarly.

Namely, that I feel the nature of the offenses, the time frame within which the prior convictions have occurred, does fairly and accurately give the jurors some guidance at least in terms of the issue of credibility of a person who has suffered such convictions.” Defendant now argues the trial court erred, and the error, coupled with the court’s earlier ruling permitting admission into evidence of a redacted recording of his June 17th interview with police, placed him in the dilemma of staying silent and allowing the People to present this truncated version of his statements, or testifying to clarify his statement and suffering impeachment with his prior felony convictions.

He contends his prior convictions had little bearing on his truthfulness, were highly prejudicial due to their similarity to the crimes against Dolinka, and were remote in time. The People essentially concede error as to the prior rape and murder convictions.

Although they note the prior convictions were not remote in time because defendant essentially was in prison during the time between the convictions, and thus his convictions had not “ ‘been followed by a legally blameless life’ ” (Beagle, supra, 6 Cal.3d at p. 453), the People admit the rape and murder convictions did not bear directly on defendant’s veracity as required by Beagle and its progeny. (See, e.g., People v.

Rist (1976) 16 Cal.3d 211, 221 [127 Cal.Rptr. 457, 545 P.2d 833].) They also concede the murder and grand theft convictions are “somewhat similar” to the Dolinka crimes, but argue that conviction for grand theft from the person, being a larcenous crime, bears heavily on credibility. Assuming there was Beagle error, the People argue strenuously it was harmless. Dolinka was killed in May 1982, just prior to the passage of Proposition 8 in June 1982. Accordingly, defendant’s case is governed by Beagle, supra, 6 Cal.3d 441, and not Castro, supra, 38 Cal.3d 301. (People v.

Smith (1983) 34 Cal.3d 251, 262 [193 Cal.Rptr. 692, 667 P.2d 149]; People v. Pickett (1985) 163 Cal.App.3d 1042, 1047 [210 Cal.Rptr. 85].) Although the law before Castro, supra, 38 Cal.3d 301, gave trial courts discretion to admit or exclude prior felony convictions for purposes of impeachment, this court, in a long line of cases, had developed guidelines for courts to follow. Thus, for example, prior convictions for crimes whose elements were relevant to a person’s veracity (such as fraud or deceit) were more likely admissible than mere acts of violence or other assaultive behavior. (People v.

Barrick (1982) 33 Cal.3d 115, 122 [187 Cal.Rptr. 716, 654 P.2d 1243].) The nearness or remoteness in time of the prior conviction was also a factor, as was whether the defendant had led a blameless life between the prior conviction and the present one. (Ibid.) Whether the defendant was charged with a crime substantially similar to that underlying a prior conviction, as well as the importance of hearing the defendant’s version of events, were other relevant considerations. (Id. at pp. 122-123.) As the People concede, the trial court abused its discretion under Beagle, supra, 6 Cal.3d 441, by ruling defendant’s prior murder and rape convictions could be admitted to impeach him should he choose to testify.

Defendant’s conviction for murder was similar to the crime against Dolinka (People v. Spearman (1979) 25 Cal.3d 107, 116 [157 Cal.Rptr. 883, 599 P.2d 74]), and his convictions for murder and rape do not strongly suggest he was prone to dishonesty (People v. Holt (1984) 37 Cal.3d 436, 456-457 [208 Cal.Rptr. 547, 690 P.2d 1207] [murder conviction does not indicate witness “was disposed to falsify”]; see People v. Rist, supra, 16 Cal.3d at p. 221 [rape not relevant to lack of honesty]).

On the other hand, the trial court did not abuse its discretion in ruling defendant’s grand theft conviction could be admitted to impeach him, for theft crimes necessarily involve an element of deceit. “The crime[] of grand larceny . . . [is] recognized as reflective of a person’s honesty and integrity, and [is] therefore probative for purposes of impeachment.” (People v.

Anjell (1979) 100 Cal.App.3d 189, 196 [160 Cal.Rptr. 669].) Having determined the trial court abused its discretion in ruling defendant’s prior convictions for rape and murder could be admitted for impeachment purposes, we turn to the question whether the error requires reversal. We agree with respondent it does not. As noted, had defendant testified, he properly would have been impeached with his 1984 felony conviction for grand theft from the person.

Moreover, the evidence against defendant was quite strong, for his coperpetrator, Mark Garrison, testified against him and numerous aspects of Garrison’s story were consistent with evidence already known to the police. Finally, although defendant did not testify, the jury heard his side of the story from Sergeant Quinn and Detective McCarthy, who recounted defendant’s statements in the June 17th interrogation admitting having planned and executed the robbery but placing the blame for killing Dolinka squarely and solely on Garrison’s shoulders.

Although it is true, as defendant argues, that police had an incentive to inculpate him, he does not explain how his story would have been any different had he testified himself. Considering together the availability of the prior felony conviction for impeachment, the strong evidence of defendant’s guilt, and the fact his version of the crime reached the jury, we conclude the trial court’s error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]. (See People v. Barrick, supra, 33 Cal.3d atp. 130 [applying Watson]; People v.

Woodard (1979) 23 Cal.3d 329, 341 [152 Cal.Rptr. 536, 590 P.2d 391] [same].) 2. Opening Statements Defendant next contends the prosecutor committed misconduct in his opening statement at the guilt phase of trial and that his own defense counsel was constitutionally ineffective in his opening statement to the jury. We reject both contentions. a. Alleged prosecutorial misconduct Defendant contends the prosecutor engaged in two instances of misconduct in his opening remarks.

First, he claims the prosecutor stated that Garrison would testify he was unsure whether he could go through with the planned robbery and murder, but that defendant assuaged his doubts by telling him not to worry because he (defendant) had killed someone before. Defendant argues this assertion by the prosecutor was “inadmissible, prejudicial and inflammatory,” and made in bad faith. At the outset, we note defendant did not object to this statement nor request that the jury be admonished, thus failing to preserve the issue for appeal. (People v.

Hill (1998) 17 Cal.4th 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d 673].) Defendant, however, claims defense counsel’s statement, uttered a few minutes later in beginning his own opening remarks, that the prosecutor’s opening statement “almost sounds like a closing argument,” served as an objection and placed the trial court on notice that a curative admonition was necessary.

We disagree; in addition to coming well after the allegedly offending statement, defense counsel’s comment was ambiguous and could not reasonably have indicated to the trial court that he was objecting to the prosecutor’s earlier remark about defendant’s alleged comment to Garrison that he had committed a previous homicide. Defendant argues that if we find the issue was not preserved for appeal, we should find counsel ineffective for failing to object. Of course “ ‘[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel’ (People v.

Kelly (1992) 1 Cal.4th 495, 540 [3 Cal.Rptr.2d 677, 822 P.2d 385]).” (People v. Williams (1997) 16 Cal.4th 153, 221 [66 Cal.Rptr.2d 123, 940 P.2d 710].) In this instance, the trial court had already ruled before trial that Garrison’s testimony on this point was admissible; hence, counsel had no ground on which to object. Moreover, even if defendant could conjure up some ground on which the prosecutor’s brief comment could be characterized as objectionable, defense counsel may simply have desired not to highlight the comment by objecting. We find no prosecutorial misconduct and no ineffectiveness of counsel.

Defendant contends the prosecutor engaged in a second form of misconduct in his opening statement when he argued his case to the jury instead of summarizing it. Defendant also failed to preserve this issue for appeal by interposing a timely objection and requesting that the jury be admonished. In any event, “[t]he fimction of an opening statement is not only to inform the jury of the expected evidence, but also to prepare the jurors to follow the evidence and more readily discern its materiality, force, and meaning.” (People v.

Dennis (1998) 17 Cal.4th 468, 518 [71 Cal.Rptr.2d 680, 950 P.2d 1035].) The prosecutor did not transgress these limits. b. Alleged ineffective assistance of counsel In addition to the instances noted above in which defendant claims his trial counsel should have objected, he contends counsel was ineffective in his own opening remarks by conceding defendant’s guilt of robbery and first degree murder.

The constitutional standard for determining whether counsel has failed to provide adequate legal representation is by now well known: First, a defendant must show his or her counsel’s performance was “deficient” because counsel’s “representation fell below an objective standard of reasonableness [f] . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674]; People v.

Weaver, supra, 26 Cal.4th at p. 925.) Second, he or she must then show prejudice flowing from counsel’s act or omission. (Strickland, supra, at pp. 691-692 [104 S.Ct. at pp. 2066-2067]; Weaver, supra, at p. 925.) We will find prejudice when a defendant demonstrates a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257 [259 Cal.Rptr. 491, 774 P.2d 164], citing Strickland, supra, at p. 694 [104 S.Ct. at p. 2068].) “Finally, it must also be shown that the [act or] omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make.” (In re Sixto, supra, at p. 1257.) Philip Barnett and Vincent O’Malley represented defendant at trial. Mr. Barnett gave the opening statement for the defense.

In part, he told the jury: “There’s no question in this case that two people robbed young Elliott Dolinka. There’s no question that Mr. Gurule and Mr. Garrison were those two people. The issue for you to decide in the guilt portion of the case is who killed Elliott Dolinka, also, what intent, if any, Mr. Gurule may have had with regard to the death of Elliott Dolinka. I’m not going to try to go into the legal issues that are involved in that. Judge Stevens, at the appropriate time, will instruct you as to what the law is. Both Mr.

Lull [the prosecutor] and our side will get to argue to you. “I would simply say to you, there is not a question of whether there was a robbery, and there’s not a question as to whether Elliott Dolinka was killed during the course of that robbery. That is why in the careful process of jury selection when we talked to each of you individually we frankly told you that we felt that you would return a verdict of first degree murder in the case, as we saw it.

The judge will instruct you as to what first degree murder is; that you will find that a murder during the course of a robbery is a first degree murder, regardless of which person actually did the killing. “So that, you’ll find that even if Raymond Gurule did not kill Elliott Dolinka in this case, still, the framing Garrison did was part of a robbery; that that would be first degree murder as to Mr. Gurule. It is, however, important as to the special circumstance before you now for you to reach conclusions as to who did the killing and as to what intent Mr.

Gurule had.” When Barnett then made an oblique reference to the prior-murder special-circumstance allegation, the prosecutor objected and the trial court sustained the objection. Defendant contends any concession by counsel that his client was guilty constitutes ineffective assistance irrespective of the circumstances. He is mistaken. (People v. Cain (1995) 10 Cal.4th 1, 31 [40 Cal.Rptr.2d 481, 892 P.2d 1224]; People v.

Mayfield (1993) 5 Cal.4th 142, 177 [19 Cal.Rptr.2d 836, 852 P.2d 331].) That is not to say such concessions of guilt can never be ineffectiveness of counsel; the cases defendant cites in support demonstrate that a defense attorney’s concession of his client’s guilt, lacking any reasonable tactical reason to do so, can constitute ineffectiveness of counsel. (See, e.g., People v. Davis (1957) 48 Cal.2d 241, 257 [309 P.2d 1]; People v. Diggs (1986) 177 Cal.App.3d 958, 970-971 [223 Cal.Rptr. 361].) In the instant case, Barnett’s concession of defendant’s guilt was not unreasonable.

Defendant had admitted his participation in the robbery to the police; his story was that it was Garrison who actually had killed the victim by slicing his throat. As Barnett admitted to the jury, defendant’s role in the crimes constituted first degree murder on a felony-murder theory at the least. The only question was the identity of the actual killer.

As in other cases where the evidence of guilt is quite strong, “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 [some of the charged crimes], and may have aided and abetted the acts of violence which caused the victims’ deaths, nonetheless any such acts were [not so serious as to warrant the most severe punishment].

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.” (People v. Jackson, supra, 28 Cal.3d at pp. 292-293, disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; see also People v.

Mayfield, supra, 5 Cal.4th at p. 177 [“candor may be the most effective tool available to counsel”].) We thus conclude counsel was not ineffective for admitting to the jury defendant’s guilt of robbery and first degree murder. 3. Alleged Problems with the Admission of Garrison’s Testimony Garrison was obviously the People’s star witness. Defendant contends the trial court committed a number of errors in deciding to admit Garrison’s testimony. a. Garrison’s failure to identify defendant in court Garrison, who is African-American, testified that prior to the crime, he had body work done on his Oldsmobile Cutlass.

He did not know the man who worked on his car, but Garrison described him as a dark-skinned man, five feet six to eight inches tall, with “kind of straight” hair. This description matched defendant. Significantly, Garrison also testified that the man had the word “Apache” tattooed on the inner part of his forearm. Defendant bears such a tattoo. Garrison testified the two agreed to commit a robbery, jointly decided to target Barry’s Chevron, and consummated their plan, resulting in Elliott Dolinka’s murder. Garrison testified the man he knew as “Apache” lived four blocks from the body shop.

Sergeant Quinn later testified defendant lived in that area. Garrison’s account was corroborated by Shirley Funk, who reported seeing an African-American man at Barry’s Chevron, and then a man who was neither Caucasian nor African-American, but possibly Hispanic or Asian, come up and speak to the African-American man. Another witness, David McLaughlin, positively identified defendant

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