THE PEOPLE, Plaintiff and Respondent, v. WILLIE DARNELL JOHNSON, Defendant and Appellant, 3 Cal. 4th 1183

Opinion PANELLI, J. A jury convicted Willie Darnell Johnson of the murder of Mrs. Willie Womble (Pen. Code, § 187), the attempted murder of Ms. Angela Womble (§§ 187, 664), robbery in an inhabited dwelling (former § 213.5; see now § 212.5), and first degree burglary (§§ 459, 460).

Robbery and burglary felony-murder special-circumstance allegations were found true. (§ 190.2, subd. (a)(17)(i), (vii).) The jury also found that defendant personally used a firearm in the commission of these offenses (§ 12022.5) and inflicted great bodily injury in the commission of the attempted murder, the robbery, and the burglary (§ 12022.7). Following a penalty trial, the jury sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. We dismiss defendant’s related appeal from a postjudgment order of the trial court (No. 12228). Guilt Phase Facts A.

Prosecution Case On July 1, 1986, Angela Womble lived with her mother, Mrs. Willie Womble, and her 16-month-old son, Terrance (Tee Tee), at 111 South 42nd Street in Richmond. Tee Tee’s father was Angela’s former boyfriend, Terrance (Tee) Henderson. Henderson was reputed to be a drug dealer. While Angela was Henderson’s girlfriend, she had held sums of money for him. After their relationship ended in August 1984, she never held money for him. Angela cashed a paycheck from her job at the Social Security Administration on July 1,1986.

That evening, she set aside cash to pay bills, placing the appropriate amounts in payment envelopes which she put on a curio shelf in her kitchen. About 9:45 or 10 p.m., Angela heard a knock at the front door. Her mother was talking on the telephone, and Angela went to the door to ask who was there. She heard someone answer, “Ann, this is Allie. Come take me to the gas station.” Angela again asked, “Who?” The man repeated himself. She recognized the voice as that of Allen Duchine, a friend of Terrance Henderson. Angela took the chain off the door and opened it.

On her front porch were Duchine and another man whom she did not know. They were both carrying guns. She tried to close the door, but they pushed it in. The impact from the door knocked her onto the living room floor. Duchine entered, followed by the other man. Angela sat on the floor for one or two minutes, looking at the men. At trial, she described the lighting conditions in her house at that moment. Although the porch light was off, lights were on in the breakfast nook outside the kitchen and in the bathroom. There was also a street light between the Womble house and the next house to the north.

She did not remember whether lights in the kitchen or the living room were turned on. At trial, Angela described Duchine as wearing jeans, a baseball cap, and a dark-colored jacket. Duchine was carrying a rifle about 22Vz inches in length. The other man, whom she later identified as defendant, was wearing a white T-shirt and jacket and a shiny stud earring. He was carrying a shotgun about 20 inches in length. The barrel of Duchine’s rifle was about the size of a dime; that of defendant’s shotgun about the size of a 50-cent piece.

After Angela was knocked to the ground, her mother ran to the living room and began to hit defendant, trying to force him to let go of his gun and demanding that he get out of her house. He pushed Mrs. Womble to the ground with his gun. Angela told her mother to stop and sit down. Duchine demanded that Angela give him her money. She got up and went to the curio shelf, took the money out of the payment envelopes, and handed it to Duchine. Mrs. Womble remained on the living room floor with defendant standing over her. Angela returned to the living room and sat down. She was able to see defendant clearly.

Duchine ordered her to give him all the money. Angela told him she had given him what she had, but Duchine demanded, “Where’s Tee’s money?” Angela said she did not have Tee’s money. Duchine accused her of lying and again asked where the money was. Angela, carrying Tee Tee, and Duchine went to Angela’s mother’s bedroom. Duchine rummaged through the room, looking for money. Angela left the bedroom to return to the living room. Duchine followed her. In the hallway outside the bedroom, he raised the stock of his rifle and knocked the cover from the hole leading to the attic.

Twenty seconds to a minute after Angela returned to the living room, Duchine also returned. Angela did not see where he had gone in the interim, but later she discovered that various items in her bedroom had been moved. Duchine and defendant spoke to each other, but Angela could not hear what they said. Defendant pumped the shotgun and fired it into the ceiling. Angela urged her mother to lie down. Defendant again fired up at the ceiling, then pointed his weapon down and fired into the back of Mrs. Womble’s head. Angela testified that he fired a second time at Mrs. Womble.

Defendant and Duchine then pointed their weapons at Angela, who also had lain down on the floor. She tried to duck, and felt she had been shot. Ten or fifteen seconds later, defendant and Duchine left the house, closing the front door behind them. Angela crawled to the front door, but could not open it. Tee Tee pulled the door open for her, and Angela screamed for help. Several neighbors responded. Angela told one of her neighbors she had been shot by Duchine and another man. A police officer arrived and asked Angela who had shot her.

She named Duchine and described him, and said she did not know the other man, but gave a brief description of him. Various neighbors of the Wombles testified to their observations on the night of the crimes. Willa Mae Addison, whose house faced the Womble residence, testified that while talking with her daughter on the telephone on the evening of July 1, 1986, she heard two sounds that she initially thought were firecrackers going off. Then she heard a third sound. Dropping the telephone, she looked out her bedroom window and saw two men emerging from the Womble residence.

They ran along the side of the house into an alley, got into a white or cream-colored pickup truck, and drove away. On hearing the telephone drop, Ms. Addison’s daughter, Willie Marie Juniel, drove to her mother’s house. Hearing Angela’s cries for help, she stopped at the Womble residence to aid her. Ms. Juniel testified that there was sufficient light to enable her to see furniture in the living room. Darlyne Robinson, who also attempted to assist Angela, testified it was light enough in the Womble living room for her to see Tee Tee, who was standing beside the north wall, crying.

Richmond Police Officers deVille and Martin arrived at the Womble house about 10:10 p.m. According to Officer deVille, the living room was well lit and he had no difficulty seeing items inside it. Officers Simmons and Imrie arrived at the Womble residence soon after deVille and Martin. Angela told them what had happened, describing both gunmen as Black, in their 20’s, 6 feet tall, with black hair. She said she could identify them if she saw them. Inside the house, Officers Simmons and Imrie could see well enough to make observations without using a flashlight or additional lighting.

They found physical evidence including three expended shotgun shell casings beside Mrs. Womble’s foot, bullet holes in the north wall and ceiling, and bloodstains on the northeast curtain of the living room. Evidence showed that defendant and Duchine were together on the day of the crimes. Ketcia Hawkins, a friend of Angela Womble who was acquainted with defendant and Duchine, testified she saw the two men between 5 and 6 p.m. in the Easter Hill neighborhood in Richmond. Later that night, Hawkins received a telephone call from Angela’s cousin, Bobby Jones, who told her about the crime.

Between 10:30 and 11 p.m., Hawkins in turn called Zina Sims, defendant’s cousin. Hawkins testified that while Hawkins remained on the line Sims dialed another party, using three-way calling. Hawkins recognized the third party’s voice as that of Renee Morgan, defendant’s sister. After Hawkins spoke with Morgan, Duchine came on the line. While Duchine was on the line, defendant also came on the line. Zina Sims testified she received a telephone call from Ketcia Hawkins between 10 and 10:30 p.m. but denied placing any calls while Hawkins was on the line.

Nonetheless, she testified that after talking with Hawkins, she called defendant’s mother’s house and spoke briefly with defendant’s sister Renee Morgan. Later, Renee telephoned Sims. Both defendant and Duchine spoke with Sims during the latter call. Richmond Detective Michael Shipp went to the house of defendant’s mother, Valine Duckett, about 6 p.m. on July 2. He saw a tan pickup truck parked on the property. The truck was registered to Ms. Duckett. Later on the evening of July 2, Detective Shipp interviewed Angela Womble at John Muir Hospital.

She had difficulty breathing and was connected to an oxygen machine. Detective Shipp showed Angela two photographic lineups, each consisting of six photographs. In the first lineup, Angela positively identified Duchine’s photograph. In the second, Angela identified defendant’s photograph, saying she was not positive, but he looked like the person who shot her mother. Angela stated that friends and relatives had told her Duchine’s accomplice was “Willie Johnson.” She described him as dark-skinned, with a round head, a short haircut, and an earring in one ear.

Detective Shipp tape-recorded Angela’s July 2 interview, which was generally consistent with her testimony. On July 7, Detective Shipp spoke to Angela about the shooting over the telephone. During this interview, which Shipp tape-recorded, Angela described the second perpetrator as “the tall, dark man” and “the larger dude.” She said he looked like he was wearing a white T-shirt, but she was unsure. He wore an earring in his right ear, she said. On July 17, Detective Shipp learned that defendant was in custody in Martinez. The following day, he arranged for Angela Womble to view a live lineup.

Counsel was appointed to represent defendant at the lineup. Defendant was advised he did not have a right to refuse to participate in a lineup and his refusal could be used in evidence against him. Nonetheless, defendant refused to participate. On July 22, Detective Shipp showed Angela another photographic lineup that included a picture of defendant taken more recently than the one shown her on July 2. This time she positively identified defendant’s photograph. Physical evidence was in most respects consistent with Angela’s testimony.

Bruce Fukayama, a criminalist, testified that he examined the shotgun shell casings, pellets, and wadding found at the scene and the lead projectile fragment removed from Angela’s arm. He concluded that the lead fragment was from a bullet rather than a shotgun shell. Dr. Louis E. Daugherty performed an autopsy on the body of Mrs. Womble. He testified she died of a shotgun wound to the head. Evidence indicated that four shotgun rounds in all had been fired. No physical evidence linked defendant with the crime. B. Defense Case The defense was misidentification. Dr.

Elizabeth Loftus, a professor of psychology, testified about factors affecting human perception, memory, and identification. She testified that there are three stages of memory: acquisition, retention, and retrieval. An evaluation of a witness’s acquisition of a visual memory must consider lighting conditions, distance of the witness from the object seen, and the witness’s level of stress or fright. Under high levels of stress or fright, she testified, the ability to perceive and remember may be significantly impaired. Dr.

Loftus described a phenomenon known as “weapon focus”: when a crime involving a weapon occurs, the weapon’s presence can capture a great deal of the witness’s attention, which can lead to reduced ability to remember and accurately describe other details. Dr. Loftus noted there is a tendency for a witness to overestimate the duration of relatively short events, especially complex ones, and women tend to overestimate more than do men.

According to the witness, when it comes to retention of memory, the longer the interval of time that passes before the witness tries to recall information from memory, the less accurate the memory. Moreover, what occurs in the retention interval is crucial: if the witness is exposed to new, suggestive, or confirming information about the event, the greater the potential for contamination of the witness’s memory. Dr. Loftus testified that studies have demonstrated there is little or no correlation between the witness’s confidence in his or her memory, and its accuracy. Jury Selection Issues A.

Denial of Defense Challenges for Cause to Three Prospective Jurors During jury selection, defendant challenged three prospective jurors for cause. The trial court denied the challenges, and defendant later used peremptory challenges to prevent those persons from serving on the jury. When the jury was finally seated, defendant had five peremptory challenges remaining. He now urges that denial of his challenges for cause was reversible error under the federal and state Constitutions and former

section 1073. (Wainwright v. Witt (1985) 469 U.S. 412, 423-424 [83 L.Ed.2d 841, 851,105 S.Ct. 844]; U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 1, 7(a), 15, 16; see also former § 1073, repealed by Stats. 1988, ch. 1245, § 33, p. 4155.) In order to obtain relief on appeal for denial of a challenge for cause, defendant must show that the ruling affected his right to a fair and impartial jury. Because defendant exercised peremptory challenges to remove the three prospective jurors whom he had unsuccessfully challenged for cause, none of the three compromised the impartiality of his jury.

Therefore, he cannot claim error under Wainwright v. Witt, supra, 469 U.S. 412, based on the trial court’s denial of those challenges for cause. (People v. Mason (1991) 52 Cal.3d 909, 954 [277 Cal.Rptr. 166, 802 P.2d 950]; see Ross v. Oklahoma (1988) 487 U.S. 81, 87-89 [101 L.Ed.2d 80, 89-90, 108 S.Ct. 2273].) Defendant argues that the loss of the peremptory challenges he used to excuse the three prospective jurors prejudiced him. We cannot agree. Defendant had five peremptory challenges remaining when he accepted the jury.

He expressed no dissatisfaction with the jurors selected and did not request additional peremptories. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1088 [259 Cal.Rptr. 630, 774 P.2d 659].) Defendant’s belated recitation of dissatisfaction with the jury is speculative. Consequently, he fails to demonstrate that he was harmed by the denial of his challenges for cause. (People v. Gordon (1990) 50 Cal.3d 1223, 1247-1248 [270 Cal.Rptr. 451, 792 P.2d 251].) Defendant contends he was justified in not exhausting his peremptory challenges due to the method of jury selection employed in his case.

The parties stipulated to the use of the “struck system” instead of the more standard “jury box” method. Under the version of the struck system used in this case, prospective jurors filled out questionnaires and were individually questioned and challenged for cause. Next, prospective jurors were randomly assigned numbers establishing the order in which they would be further questioned and called to sit as jurors. They then were questioned in groups of 16 and subjected to challenges for cause.

Finally, the remaining prospective jurors were seated in the jury box in the previously assigned order and the parties exercised their peremptory challenges. A prospective juror who was excused was then replaced with the next person on the list. Thus, based on earlier voir dire the parties were familiar with the attitudes of each member of the panel when they were called upon to exercise their peremptory challenges.

Defendant contends he should not have been required to exhaust his peremptory challenges because he knew, when the 12th juror was chosen, that there were at least 5 remaining people on the panel who were objectionable to him. He does not persuade us. Whichever method of jury selection is used, exhaustion of peremptory challenges is a prerequisite to a claim of error in the denial of a challenge for cause. (People v.

Morris (1991) 53 Cal.3d 152, 185 [279 Cal.Rptr. 720, 807 P.2d 949] (Morris).) The difference between the struck and jury box systems bears no relationship to the requirement that a defendant exercise peremptory challenges to exclude jurors he believes to be biased against him. “Regardless of the system of jury selection, a party’s failure to exercise available peremptory challenges indicates relative satisfaction with the unchallenged jurors. Having so indicated in this case, defendant cannot reasonably claim error.” (Ibid.; see also People v.

Ashmus (1991) 54 Cal.3d 932, 964-967 [2 Cal.Rptr.2d 112, 820 P.2d 214] (Ashmus).) Defendant criticizes Morris and Ashmus, and cites decisions to the contrary from other jurisdictions, but does not persuade us that we erred. Defendant also contends Morris and Ashmus are factually distinguishable from this case. In essence, he argues he had fewer peremptory challenges remaining and so was more disadvantaged vis-á-vis the prosecution than the defendant in either of those cases. He cites no authority for the point, and we assign it no weight.

Defendant also makes much of the fact that he exercised all four of the peremptory challenges allotted him in the selection of the four alternate jurors. As defendant sees it, this—together with the fact that one prospective juror whom defendant had unsuccessfully challenged for cause was third in line to be summoned to the jury box after the alternates were sworn—meant that defendant knew he would be unable to improve the composition of the jury with the five challenges remaining to him.

However, had he exhausted his five remaining peremptories in the selection of regular jurors, presumably he would have been granted an additional four challenges for the selection of alternates. It would be sheer speculation to assume that had defendant exhausted his peremptory challenges and made use of the additional challenges granted him in the selection of alternates, he would have been forced to trial with a jury unsatisfactory to him. B.

Denial of Defendant’s Motion to Have His Guilt or Innocence Decided by Non-Death-Qualified Jury Before the start of voir dire, defense counsel requested that prospective jurors considered for the guilt phase of the trial not be disqualified for opposition to the death penalty. Defense counsel asked that two juries be selected: a non-death-qualified jury to decide his guilt or innocence, and a death-qualified jury to determine penalty, if necessary.

Alternatively, counsel proposed to select 12 or more alternate jurors and to postpone death-qualification until after the guilt phase, at which time a death-qualified jury could be selected for the penalty phase by substituting death-qualified alternates for regular jurors who could be excluded for their views against the death penalty. In support of the motion, counsel argued that death-qualification denies the defendant a jury drawn from a representative cross-section of the community. He also argued that such a jury is conviction-prone and focuses unduly on death as an issue rather than guilt or innocence.

The trial court denied the request. A renewed request made at the conclusion of sequestered Hovey voir dire was likewise denied. (See Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301].) Defendant contends the court erred. He concedes that both this court and the United States Supreme Court have rejected various constitutional challenges to the practices followed here. (Lockhart v. McCree (1986) 476 U.S. 162, 174-177 [90 L.Ed.2d 137, 148-150, 106 S.Ct. 1758]; People v. Pensinger (1991) 52 Cal.3d 1210, 1254 [278 Cal.Rptr. 640, 805 P.2d 899]; Hovey v.

Superior Court, supra, 28 Cal.3d at p. 68.) We decline his invitation to reconsider our earlier decisions. Raising for the first time an Eighth Amendment challenge, he observes that neither we nor the high court has specifically considered the propriety of death-qualification in light of the constitutional interest in heightened reliability of guilt and penalty phase determinations in capital cases. Insofar as our research enables us to say, his observation is correct. However, his Eighth Amendment claim appears to be merely a restatement of his Sixth Amendment claims, and as such we find it to be without merit.

Defendant also urges us to exercise our supervisory authority over California criminal procedure and disapprove the practice of questioning prospective jurors before the guilt phase on their attitudes toward sentencing choices available at a penalty phase. He does not persuade us to do so. Guilt Phase Issues A. Angela Womble’s Pretrial and In-court Identifications 1. Factual Background Both before and during the preliminary hearing, as well as at trial, defendant sought to exclude Angela Womble’s pretrial and in-court identifications of him, arguing they were the product of improper, suggestive procedures.

The trial court conducted an evidentiary hearing on the issue and considered the evidence adduced at the pre-preliminary hearing motion, testimony given at the preliminary hearing, and transcripts of Angela Womble’s statements to Detective Shipp during the photo lineups on July 2 and July 22. The trial court ruled the identification testimony admissible. Defendant contends the trial court erred. To assess his claim, we summarize the evidence the trial court reviewed.

Before the July 2 photographic lineup, an investigator received an anonymous telephone call stating that Willie Johnson had been with Allen Duchine on the day the crimes were committed. Detective Shipp learned of the call and selected a photograph of defendant, taken in 1981, for use in the lineup. Shipp arranged six photographs in each of the two lineups (one for defendant, the other for Duchine) that he planned to show Angela Womble. The names on all of the photographs were covered. On July 2 he showed each lineup to Angela, who was still in the hospital.

Before doing so, Shipp admonished her that the person who committed the crime might or might not be in the lineup and that she was under no obligation to select anyone. Angela quickly identified Allen Duchine’s photograph in the first lineup. Before viewing the second lineup, containing defendant’s photograph, Angela described the other perpetrator as a “young man, dark-skinned, short haircut, with the earring in one ear.” She also said he was tall. Angela stated she did not know the man, but friends and family had told her he was Willie Johnson.

When Detective Shipp showed her the second lineup, Angela examined the photographs for 11 seconds, then selected defendant’s picture, saying “His face looks familiar . . . [b]ut see, it was dark.” She asked if the person in the photograph was “buff’; Shipp said he could not answer that. Angela acknowledged she was not positive about the identification, but the photograph “look[ed] like him.” The person in the photograph, she said, had the same facial features, round head, and forehead structure. On July 18, Detective Shipp brought Angela to the county jail to view a live lineup.

On the way there, Shipp told her they had a suspect in custody; at the preliminary hearing he testified he told her Willie Johnson was in custody, but at trial he could not remember using that name. They entered the jail through the lobby and did not go into any portion of the building where inmates were housed. No lineup was held because defendant refused to participate, despite being told an attorney had been appointed to represent him. On July 22, Detective Shipp assembled another photographic lineup, using three of the photographs he had used in the July 2 lineup and a more recent photograph of defendant.

Two photographs of men not included in the earlier lineup were also used in the July 22 lineup. Detective Shipp testified to the effect that his aim in reusing three of the photographs from the earlier lineup was to avoid the prejudice inherent in defendant being the only person depicted in both lineups. Defendant was dressed in jail clothes in the newer photograph, but his photograph showed him only from the chest upward so that it appeared he was wearing a gold shirt over a T-shirt. The other persons depicted in the lineup photos were not wearing jail clothing.

Angela was unaware defendant was wearing jail clothes in the photograph. As with the earlier lineup, the names on the photographs were concealed. Once again, Detective Shipp admonished Angela that she was not obligated to identify anyone. After examining the lineup for several seconds, she identified defendant’s photograph. She was positive about the identification, due to the round head, cheekbone structure, and the side of the ear. Angela used the name “Willie” in talking about defendant, indicating she had heard the name from family and friends.

At trial, Angela testified that someone—she could not remember who—had told her Willie Johnson was responsible because he was running with Allen Duchine. She testified, however, that no one described Willie Johnson or told her anything else about him. She did not recognize any of the photographs from the first lineup as being in the lineup she examined on July 22. She identified defendant’s photograph because she remembered him as the person standing over her with the shotgun. In December 1986, five months after the crime, Angela met with Detective Shipp and the prosecutor.

Earlier she had said the gunman wore a shiny earring in his right ear. However, during their December conversation, while facing the prosecutor she pointed to his left ear. At the preliminary hearing, Angela testified she had no doubt it was in the left ear that the gunman wore his earring. Defendant’s left ear, not his right, was pierced. At the conclusion of the evidentiary hearing, the trial court found that defendant had failed to present evidence showing that “the photographic lineup was so impermissibly suggestive as to give rise to a likelihood of. . . irreparable misidentification.” (See People v.

Floyd (1970) 1 Cal.3d 694, 712 [83 Cal.Rptr. 608, 464 P.2d 64].) Accordingly, the court admitted Angela’s pretrial identifications of defendant in the photo lineups. Angela also identified defendant as the second gunman at trial, based on her independent recollection. 2. Propriety of Admission of Identification Evidence Defendant renews his contention that Angela Womble’s identifications were irreparably tainted by suggestive information and by undue emphasis on defendant’s photograph in the July 22 lineup.

Specifically, he objects to the fact that defendant was the only person depicted in the photo lineup who was wearing jail clothing and contends that there was an inadequate number of plausible suspects, and that defendant was the only person among the plausible choices who had been in the prior lineup. He also notes that before and after Angela saw the first photo lineup, she was told by family and friends that the second gunman was Willie Johnson, whom she had never seen before.

He contends that after identifying his photograph in the July 2 lineup, Angela indicated uncertainty and began to ask questions to try to confirm the correctness of her choice. Although the police should have been especially careful to avoid suggestive or confirmatory comments, defendant argues, Detective Shipp told Angela en route to a live lineup two weeks later that a “Willie Johnson” had been arrested—thus effectively confirming that Angela had selected the correct man.

These infirmities in identification procedures, he contends, deprived him of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and under

article I, sections 1, 7, 15, 16, and 17, of the California Constitution. In People v. Gordon, supra, 50 Cal.3d at page 1242, we articulated the principles that determine whether the admission of identification evidence violates a defendant’s right to due process. Constitutional reliability, we said, depends on (1) whether the identification procedure was unduly suggestive and unnecessary (Manson v.

Brathwaite (1977) 432 U.S. 98, 104-107 [53 L.Ed.2d 140, 147-150, 97 S.Ct. 2243]); and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. (People v. Gordon, supra, 50 Cal.3d at p. 1242, citing factors enumerated in Neil v.

Biggers (1972) 409 U.S. 188, 199 [34 L.Ed.2d 401, 411, 93 S.Ct. 375].) “If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.” (People v. Gordon, supra, 50 Cal.3d at p. 1242.) “It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo.” (People v.

Gordon, supra, 50 Cal.3d at p. 1242.) Defendant disagrees, contending the United States Supreme Court in Neil v. Biggers, supra, 409 U.S. at p. 201 [34 L.Ed.2d 412] resolved the issue by employing a de novo standard of review. Defendant overstates his case by ignoring the different procedural posture of Biggers. Debate over the proper standard of review of claims of impermissibly suggestive identification procedures continues. (See People v.

Gordon, supra, 50 Cal.3d at pp. 1242-1243, and cases cited therein.) In any event, it is unnecessary for us to pronounce definitively on the question in this case, as we are compelled under any standard of review to conclude the trial court correctly allowed Angela Womble’s July 22 photo identification of defendant into evidence. All of the photographs were of Black males, generally of the same age, complexion, and build, and generally resembling each other. Thus, defendant’s photograph did not stand out, and the identification procedure was sufficiently neutral. (See People v.

Gordon, supra, 50 Cal.3d at p. 1243; People v. St. Germain (1982) 138 Cal.App.3d 507, 520 [187 Cal.Rptr. 915].) Minor differences in facial hair among the participants did not make the lineup suggestive. (See People v.

Holt (1972) 28 Cal.App.3d 343, 350 [104 Cal.Rptr. 572].) Nor did differences in background color and image size among the various photographs render the lineup impermissibly suggestive. (See, id. at pp. 349-350 [identification from mixture of black-and-white and color photographs not unduly suggestive].) We cannot agree with defendant that placement of the three “new” photographs in the top row of the display and the three “old” photographs—including the more recent photograph of defendant himself—in the bottom row created two suggestive “subsets” of photos. As the Court of Appeal observed in People v.

De Angelis (1979) 97 Cal.App.3d 837 [159 Cal.Rptr. 111], no matter where in the array a defendant’s photograph is placed, he can argue that its position is suggestive. (Id. at p. 841.) Contrary to defendant’s view, the use of photographs from the earlier lineup did not reduce the July 22 lineup to the functional equivalent of a three-person array. Such a measure was, as Detective Shipp reasoned, a reasonable way to avoid suggesting to the witness that defendant was the only person seriously suspected.

Defendant complains that even if it was not inappropriate to reuse photos of other men from the first lineup in addition to defendant, Detective Shipp should have used “new” photos of those men as he did of defendant and should not have simply reused the same photos. We decline to impose such a requirement. We note that Angela testified at the preliminary hearing that she did not recognize the three photographs from the first lineup when they were shown her during the second lineup.

The fact that defendant was the only person depicted in jail clothing likewise was not unduly suggestive under the circumstances present here. There was no evidence that Angela knew what jail clothing looked like when she made the identification; although on July 18 she had gone to the county jail expecting to view a lineup, she ventured no farther than the lobby and saw no inmates. She indicated she did not notice defendant’s clothes when she selected his photograph from the lineup. There were no identifying marks on defendant’s clothing; he merely appeared to be wearing a gold shirt with a T-shirt underneath.

Defendant also contends that the identification procedure was impermissibly suggestive because Detective Shipp improperly confirmed Angela’s tentative identification by telling her, en route to the aborted July 18 lineup, that Willie Johnson was in custody. Defendant reasons she must have assumed that she had selected Willie Johnson’s photograph on July 2 and that Willie Johnson would be in the July 22 photo lineup. This contention fails because Angela did not know, and never before the crime had seen, Willie Johnson. No names were visible on the photographs she viewed during either lineup.

No one other than Detective Shipp ever showed her photographs of suspects in the case. No one described Willie Johnson to her. Knowing the name “Willie Johnson” and that “Willie Johnson” was in custody could not have assisted her in selecting the photograph of the second gunman. Defendant contends that Angela’s greater confidence in her identification after the second lineup reflects Detective Shipp’s improper confirmation. It more likely stems from the fact that a more recent photograph of defendant was used.

None of Detective Shipp’s communications with Angela, in our view, constituted improper confirmation of her selection. Defendant also suggests Angela must have understood that she was expected to make a positive identification from the photo lineup on July 22. The admonition, read by Detective Shipp and acknowledged by Angela, belies the contention. We thus conclude that the identification procedures employed in this case were not unnecessarily suggestive.

Accordingly, we need not go on to the second step of the Brathwaite test to determine whether the identification itself was nevertheless reliable under the totality of the circumstances. B. Admission of “Prior Inconsistent Statement” by Angela Womble On July 22, 1986, Angela Womble selected defendant’s photograph out of a photo lineup, stating she was positive it depicted the person who killed her mother. At trial, defense counsel asked Angela on cross-examination whether she had identified the July 22 photograph “by name.” She replied, “I might have, I don’t remember.

I remember saying this is him, and it wasn’t by name, it was by his face.” On redirect examination, the prosecutor asked Angela, “When you identified that photograph on the 22nd of July, who were you identifying?” She responded, “Willie Johnson.” Based on these responses, the prosecutor moved to admit the following preliminary hearing testimony into evidence as an inconsistent statement: “[Defense Counsel.] When you looked at the second set of photographs, did you feel that the person you identified was the proper person because he looked like a person in the photographs you saw in the first set of photographs? [1] [Angela Womble.] No.

I remembered him as the one standing over me with the 12 gauge shotgun, that’s what I remembered.” Over a defense objection, the trial court allowed the preliminary hearing testimony to be read to the jury. This, defendant contends, was error. A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770. The “fundamental requirement” of

section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony. (People v. Sam (1969) 71 Cal.2d 194, 210 [77 Cal.Rptr. 804, 454 P.2d 700].) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness’s prior statement describing the event. (People v.

Green (1971) 3 Cal.3d 981, 988 [92 Cal.Rptr. 494, 479 P.2d 998].) However, courts do not apply this rule mechanically. “Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.” (Ibid) When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988-989.) As long as there is a reasonable basis in the record for concluding that the witness’s “I don’t remember” statements are evasive and untruthful, admission of his or her prior statements is proper. (People v.

O’Quinn ( 1980) 109 Cal.App.3d 219, 225 [167 Cal.Rptr 141].) Our examination of the record discloses no reasonable basis for a belief that the testimony Angela gave at trial was inconsistent with that which she gave at the preliminary hearing. The statement she made on cross-examination (“I might have, I don’t remember. I remember saying this is him, and it wasn’t by name, it was by his face.”) is, despite her momentary expression of uncertainty, essentially to the same effect as her prior testimony: that she identified defendant based on her memory of his appearance as he was committing his crimes.

The most one can say about the response she gave on redirect examination (that she identified “Willie Johnson” in the photo lineup) is that it was somewhat ambiguous, not that it was necessarily inconsistent with her prior statement or evasive in any way. Admission of Angela Womble’s preliminary hearing testimony was, therefore, erroneous. The error was, however, harmless despite the prosecutor’s reference to the testimony in his closing argument. Angela identified defendant as the second gunman at trial based on her independent recollection.

She also testified that when she identified defendant’s photographs on July 2 and July 22, she had an independent recollection of what the man who shot her mother looked like. She testified that she never saw any photographs of “Willie Johnson” apart from the ones shown her by Detective Shipp, she did not see any names on the lineup photographs, and no one described Willie Johnson to her. Thus, it is not reasonably probable that admission of the preliminary hearing testimony affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; see People v.

Andrews (1989) 49 Cal.3d 200, 211 [260 Cal.Rptr. 583, 776 P.2d 285].) Because Angela Womble was subject to cross-examination both at the preliminary hearing and at trial, defendant was at no time denied his constitutional right of confrontation. (See California v. Green (1970) 399 U.S. 149, 155-156 [26 L.Ed.2d 489, 495, 90 S.Ct. 1930].) His other claims of state and federal constitutional error likewise fail. C. Defendant’s Refusal to Participate in Lineup 1.

Factual Background On July 17,1986, Detective Shipp advised defendant, who was in custody, of his Miranda rights, and informed him he had been arrested on suspicion of murder. Defendant said he understood his rights and declined to talk to Shipp. The next day, Shipp attempted to arrange a live lineup at the Contra Costa County jail in Martinez, where defendant was being held. Deputy Sheriff Padilla spoke to defendant through the intercom system in defendant’s cell, stating defendant would have to go downstairs. Padilla then went to defendant’s cell, telling him he was going downstairs for a lineup.

Defendant refused, declaring Padilla could not make him go. Meanwhile, Attorney Nancy Kramer, who had been appointed to represent defendant at the lineup, had arrived at the jail on the morning of July 18 and sought to speak with him. She was told there was a problem in locating him and was asked to wait while officials determined where he was being housed. Kramer left the jail at noon without having seen defendant. She returned between 1 and 1:30 p.m. and waited in a holding room.

She was informed that defendant had been placed in a different module in protective custody, which was why he had not been located earlier. About 30 minutes later, she was told that defendant would not speak with her and was refusing to participate in the lineup. Detective Shipp and Angela Womble arrived at the county jail about 2:56 p.m. In the jail lobby, Shipp spoke with Kramer and Padilla regarding defendant’s refusal to participate in the lineup. Shipp and an investigator went to defendant’s cell.

Shipp advised defendant that he had no right to refuse to stand in a lineup and that if he refused, the district attorney could comment about the refusal at trial. Defendant asked, “Well, who do I have standing there with me?” Shipp explained that an attorney had been appointed for him and would be present when the persons for the lineup were selected. Shipp asked defendant if he still refused. Defendant said he did. Kramer left the jail without having communicated with defendant. Defendant objected to introduction of evidence of his refusal to stand in a lineup.

After holding an evidentiary hearing, the trial court overruled the objection. Defendant contends the trial court erred. 2. Admission of Evidence of Refusal Defendant urges that in the circumstances of this case, admission of his refusal to stand in a lineup denied him due process and violated his privilege against self-incrimination and his rights to counsel and to protection against cruel and unusual punishment. (Cal. Const., art. I, §§ 7(a), 15, 17; U.S. Const., 5th, 6th, 8th, & 14th Amends.) We reject his contentions.

The privilege against self-incrimination extends to compelled testimonial or communicative disclosures by an accused, but not to “real” or “physical” evidence derived from him. (Schmerber v. California (1966) 384 U.S. 757, 760-765 [16 L.Ed.2d 908, 913-916, 86 S.Ct. 1826]; People v. Ellis (1966) 65 Cal.2d 529, 533-537 [55 Cal.Rptr. 385, 421 P.2d 393] [voice identification testimony not protected by self-incrimination privilege].) A defendant’s appearance, as manifested in a lineup, is one such type of nontestimonial, physical evidence. Accordingly, it is not protected by the privilege (United States v.

Wade (1967) 388 U.S. 218, 221-223 [18 L.Ed.2d 1149, 1153-1155, 87 S.Ct. 1926]), and evidence of a defendant’s refusal to participate in a lineup is admissible at his trial. (People v. Huston (1989) 210 Cal.App.3d 192, 216-217 [258 Cal.Rptr. 393]; People v. Smith (1970) 13 Cal.App.3d 897, 910 [91 Cal.Rptr. 786, 52 A.L.R.3d 875] [defendant’s refusal, during show-up at police station, to don jacket and cap allegedly worn by robber not protected by self-incrimination privilege]; see also Quintana v.

Municipal Court (1987) 192 Cal.App.3d 361, 365-366 [237 Cal.Rptr. 397] [defendant’s refusal to submit to blood-alcohol test not protected by self-incrimination privilege], citing South Dakota v. Neville (1983) 459 U.S. 553, 562-564 [74 L.Ed.2d 748, 757-759, 103 S.Ct. 916].) Defendant argues that evidence of his refusal to participate in the lineup nonetheless should have been suppressed because he was denied his right to counsel during a critical stage of the prosecution against him.

He bases this argument on the fact that jail authorities failed to afford him an opportunity to meet with Attorney Nancy Kramer when she arrived at the jail asking to see him. He relies on People v. Bustamante (1981) 30 Cal.3d 88 [177 Cal.Rptr. 576, 634 P.2d 927] (Bustamante), in which we held that the California Constitution affords a suspect a right to counsel at a preindictment lineup (id. at p. 102), and People v.

Houston (1986) 42 Cal.3d 595 [230 Cal.Rptr. 141, 724 P.2d 1166] (Houston), in which we held that, under the right to counsel afforded by the California Constitution, a suspect in custody must be informed promptly of his attorney’s arrival at the detention facility, and must then be allowed to see the attorney if he so chooses before questioning begins or resumes (id. at p. 610). Bustamante, supra, 30 Cal.3d 88, does not assist defendant, inasmuch as counsel was appointed for him in advance of the lineup.

Nor does Houston, supra, 42 Cal.3d 595, benefit defendant, since defendant was not subjected to questioning. (See People v. Mattson (1990) 50 Cal.3d 826, 868-869 [268 Cal.Rptr. 802, 789 P.2d 983] [Houston rule is limited to the facts of that case.].) In any event, the exclusionary rules in both Bustamante and Houston were abrogated by the passage of Proposition 8, an initiative adopted by the voters of this state on June 8, 1982. Among other provisions, Proposition 8 added

section 28 to

article I of the state Constitution. That

section abrogated judicial decisions requiring exclusion of relevant evidence from criminal proceedings, except as compelled by the federal Constitution or other statutes not implicated here. (People v. May (1988) 44 Cal.3d 309, 315-319 [243 Cal.Rptr. 369, 748 P.2d 307].) As defendant’s crime occurred after the adoption of Proposition 8, the exclusionary rules of Bustamante and Houston have no application to this case. Defendant asserts a violation of his federal constitutional right to counsel, chiefly by way of attempting to distinguish Kirby v.

Illinois (1972) 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877] and Moran v. Burbine (1986) 475 U.S. 412 [89 L.Ed.2d 410, 106 S.Ct. 1135], Kirby held that the federal constitutional right to counsel does not attach until the initiation of judicial criminal proceedings. (United States v. Gouveia (1984) 467 U.S. 180, 187-188 [81 L.Ed.2d 146, 153-154, 104 S.Ct. 2292]; Kirby v. Illinois, supra, 406 U.S. at pp. 689, 691 [32 L.Ed.2d at pp. 417, 418] (plur. opn. of Stewart, J.) (cone, opn. of Burger, C.

J.).) Burbine reaffirmed that the right to counsel attaches with the commencement of judicial proceedings against an accused. In Burbine, the court concluded that police officers’ failure to notify the accused—who was in custody but had not been formally charged—of his attorney’s attempts to telephone him neither invalidated his waiver of Miranda rights nor impaired his right to counsel. (Moran v.

Burbine, supra, 475 U.S. at pp. 421-428 [89 L.Ed.2d at pp. 420-425].) Defendant attempts to distinguish these cases by noting that (unlike Kirby) he had counsel and (unlike Burbine) he did not waive the right to counsel or his self-incrimination privilege. These distinctions do not make a difference because appearance in a lineup does not implicate the privilege against self-incrimination. Defendant characterizes his conversation with Detective Shipp, during which he refused to stand in the lineup, as custodial interrogation in violation of Miranda v. Arizona, supra, 384 U.S. 436. It was not.

Interrogation consists of express questioning or of words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 [64 L.Ed.2d 297, 307-308, 100 S.Ct. 1682].) Detective Shipp’s statements to defendant were limited to conveying information about the proposed procedure and ascertaining whether or not defendant would participate. This neither required readvisement of rights nor amounted to interrogation in violation of Miranda.

The fact that defendant’s responses may have inculpated him was merely incidental to his unprivileged refiisal to cooperate in a nontestimonial procedure. Defendant has failed to establish that admission of the fact of his refusal to stand in the lineup, and the statements by which he did so, violated any of his rights under the state and federal constitutions. D. Prosecutorial Argument 1.

Prosecutor’s “Testimony” and Asserted Vouching Defendant contends that several remarks by the prosecutor during his guilt phase closing argument amounted to unsworn testimony or had the effect of vouching for prosecution witnesses, and so constituted misconduct. (See People v. Bolton (1979) 23 Cal.3d 208, 212 [152 Cal.Rptr. 141, 589 P.2d 396]; People v. Perez (1962) 58 Cal.2d 229, 245-246 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946].) He has waived each claim of misconduct by failing to object and request an admonition to the jury. (People v.

Sully (1991) 53 Cal.3d 1195, 1235 [283 Cal.Rptr. 144, 812 P.2d 163]; People v. Green (1980) 27 Cal.3d 1, 27 [164 Cal.Rptr. 1, 609 P.2d 468].) His failure to object is not excused: in each instance any harm could have been cured by prompt admonition. Moreover, as will appear, even if defendant had preserved his claims of prosecutorial misconduct, we would find no reversible error. Defendant first argues that the prosecutor argued improperly regarding the change in Angela’s testimony about the perpetrator’s earring.

Angela initially stated that she noticed a shiny stud in the second gunman’s right ear. (Defendant’s left ear, not his right, is pierced.) In a conversation with Detective Shipp and the prosecutor shortly before the preliminary hearing, however, Angela determined the stud was, in fact, in the perpetrator’s left ear. Both Angela and Detective Shipp testified regarding that conversation. In essence, Detective Shipp testified that Angela reached toward her own right ear, but then paused and spontaneously pointed at the prosecutor’s left ear.

Shipp testified that he told her she was pointing to her right ear, and that Angela agreed, and indicated the stud was in defendant’s left ear. Shipp testified that neither he nor the prosecutor suggested to Angela which ear was the correct one. On cross-examination, Detective Shipp acknowledged that the conversation had not been tape-recorded.

Referring to the change in her testimony regarding the gunman’s earring, Angela testified she “did it all on [her] own.” Based on this testimony, the prosecutor argued, “[A]ll I could do is submit to you that no suggestion was made in any way to Angela as to which hole or which pierced ear the defendant, Mr. Johnson, had.” Defense counsel, in turn, stated in closing argument that “[t]his movement of the earring really upsets me.

People can be wrong, sure, but the earring never gets moved until two days before preliminary hearing, the 16th of December in an unrecorded conversation between the district attorney and Detective Shipp after Willie Johnson has been arrested for murder and after he has had his left ear photographed.” In rebuttal, the prosecutor argued, “The second time that same question [the location of the earring], it was not a leading question, it was not a suggestive question, ladies and gentlemen, I more than anybody else wish there was a tape of that interview, because I submit to you if you heard a tape of that, if you heard the spontaneity following the pregnant pause, if you will, and that ear, and Detective Shipp saying that’s your right, the clear reliability and spontaneity of that pointing would be manifest.

But, we don’t have that taped. All I can do is submit it on the testimony of Angela Womble and Detective Shipp that that is in fact what happened.” The prosecutor also told the jury that “[A]ll I could do is submit to you that no suggestion was made in any way to Angela as to which hole or which pierced ear the defendant. . . had.” Defendant contends that the prosecutor injected into closing argument his own unsworn testimony regarding the conversation among himself, Angela, and Detective Shipp.

Although defendant’s contention is not without some force, we conclude the prosecutor’s line of argument was sufficiently supported by the testimony of Angela Womble and Detective Shipp to avoid characterization as misconduct.

The prosecutor’s use of the term “spontaneity” echoed Detective Shipp’s testimony as well as Angela’s testimony that she “did it all on [her] own.” The prosecutor was entitled to express his personal wish that the conversation had been recorded, since defense counsel had implicitly accused the prosecutor of suggesting that Angela change her description of the second gunman; the jury would have appreciated the context of the remark. (See United States v.

Young (1985) 470 U.S. 1, 17-18 [84 L.Ed.2d 1, 14, 1055 S.Ct. 1038].) Even if we could agree with defendant that the remarks strayed beyond the evidence, we would find them harmless. The jury had the oportunity to hear Detective Shipp and Angela Womble testify to the circumstances of the interview, and thus could judge their credibility independently of the prosecutor’s argument. Defendant also contends that the prosecutor engaged in misconduct by calling Angela Womble’s identification of defendant as reliable an identification as may be found in a courtroom.

We disagree; the statement cannot reasonably be interpreted as vouching, but would have been understood as an invitation to draw the desired inference. Defendant further argues that the prosecutor gave unsworn testimony in suggesting to the jury a way to interpret Angela’s reference to the second gunman as “tall”: that defendant, although only five feet, nine and three-quarters inches in height, was tall compared with Willie Womble. Unfortunately for the prosecutor, no witness had testified to Willie Womble’s height.

To overcome the difficulty, the prosecutor argued the jury could calculate, from the dimensions of the room and the distance of the body from the east wall, that Willie Womble was five feet three inches tall. Defendant complains that the method by which the prosecutor derived Willie Womble’s height was fallacious, and that in effect the prosecutor simply urged the jury to take his word for it that she was five feet three inches tall. We find no misconduct. The prosecutor avoided the error of stating that the pathologist would have testified that Willie Womble was indeed five feet three inches (see People v.

Johnson (1981) 121 Cal.App.3d 94, 102 [175 Cal.Rptr. 8]); instead, he conceded he had not asked the proper questions and made a rather strained argument from other evidence that the jury should so find. If the prosecutor’s reasoning was faulty, the jury was free to reject it. Defendant next contends that the prosecutor engaged in misconduct by referring to autopsy photographs not in evidence and by specifically noting with respect to one item, “[Yjou’re not going to see a picture of it.” No misconduct appears. The pathologist described Willie Womble’s injuries as depicted in eight autopsy photographs.

The trial court later ruled it would admit three of the photographs in evidence and exclude the remaining five. It would have been apparent to the jury, on retiring to deliberate, that the number of exhibits before them did not correspond to the number of photographs about which the pathologist had testified. We are unpersuaded the prosecutor’s remark could have led the jury to speculate what else might be shown in the photographs not admitted.

Finally, defendant urges the prosecutor used his closing argument to ‘testify” to the reasons why criminalist Fukayama undertook a reexamination of the shotgun shells taken from the Womble residence. Defense counsel, in argument, suggested that reexamination was done to “fit a case around Willie.” In rebuttal, the prosecutor described the initial tests performed by Fukayama and certain omissions from his analysis, stating, “The point is not what Mr. Fukayama’s conclusions were, that wasn’t the problem. The problem was with Ms method.

It was unprofessional.” The prosecutor elaborated: “The problem was the incomplete examination and for that reason, and only that reason, that evidence went back to Mr. Fukayama in January after the preliminary hearing. I can only submit that to you but I submit to you that is in fact the case.” Defendant contends that because there was no testimony either specifically labelling Fukayama’s analysis “unprofessional” or directly stating that the reason for the reexamination was the incompleteness of the initial examination, the quoted argument constituted misconduct.

We believe the prosecutor’s comments that Fukayama’s method was “unprofessional” and “incomplete” were fair inferences from the evidence, inasmuch as Fukayama described the deficiencies in Ms initial analysis and admitted Ms initial conclusion was wrong. However, the prosecutor went beyond the evidence when he argued that the only reason Fukayama reexamined the evidence was the incompleteness of the initial analysis. Fukayama did not so testify, and the prosecutor, as the person in charge of the proceedings against defendant, was in the best position to know why Fukayama was asked to reexamine the evidence.

In effect, the prosecutor “submitted” the point on Ms own representation. We see no possibility that defendant was prejudiced, however, in light of the admitted deficiencies in Fukayama’s initial analysis and Ms testimony that the prosecutor did not apply any undue influence or pressure on Mm. None of the claimed instances of misconduct, therefore, rendered defendant’s trial unfair or unreliable. Because we find no prejudice, defendant’s claim of ineffective assistance of counsel must likewise fail. (People v. Ledesma (1987) 43 Cal.3d 171, 216 [233 Cal.Rptr. 404, 729 P.2d 839].) 2.

Claimed Griffin Error Defendant argues that the prosecutor improperly drew the jury’s attention to the fact that he had not testified at trial, violating Ms privilege against self-incrimination and other constitutional rights. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 1, 7, subd. (a), 15, 16; Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106, 110, 85 S.Ct. 1229].) Defendant failed to object to the statements he now challenges, and so has waived his claim of misconduct. (People v. Ratliff (1986) 41 Cal.3d 675, 690-691 [224 Cal.Rptr. 705, 715 P.2d 665]; People v.

Green, supra, 27 Cal.3d at p. 27.) Even if he had preserved the claim, we would find it meritless, as we perceive no reasonable likelihood that the jury could have understood any of the statements in the manner defendant urges. (People v.

Clair (1992) 2 Cal.4th 629, 663 [7 Cal.Rptr.2d 564, 828 P.2d 705].) In closing argument, the prosecutor discussed defendant’s liability for aiding and abetting Duchine in the robbery, noting that the jury did not receive an aiding and abetting instruction with respect to the murder and attempted murder counts because defendant personally killed Willie Womble and shot Angela Womble. The prosecutor argued that defendant committed those crimes to avoid being identified. “Why did he do that? What was the point in doing something like that? . . .

I’m going to talk about it in some detail a little while later when I talk about specific items of evidence, when I talk about the earring, when I talk about the lighting conditions, but you know you have Angela Womble who told you and she certainly should know what the lighting conditions, what the ability to see inside that house was, and I’ll talk about that and show you a little demonstration and you have a number of other witnesses .... [Tjhere was somebody else in that house who knew what the lighting conditions were.

There was somebody else in that house who knew Willie and Angela Womble could see and not see [sic]. Somebody else in that house who was concerned about being identified and, therefore, perpetrated this murder and this attempted murder to prevent those persons from coming forward and identifying them for the killing or for the robbery, and based on that, they killed. H] There’s somebody else, ladies and gentlemen, who knows what Angela knows and who killed because of it, and that man is Willie Darnell Johnson.

That’s why there’s another part of this special circumstance instruction that is important. [][] The Court instructed you a special circumstance is not established if it was merely incidental to the commission of the murder. ...[][] You don’t have that in this case. [][] The primary intent, ladies and gentlemen, was robbery. The motive for the murder was to use the language of the law, to avoid detection. To kill witnesses who Angela’s last words in the tape could identify.” Defendant contends a reasonable juror would have understood the quoted passage as commenting on his failure to testify. We disagree.

The prosecutor was referring neither directly nor indirectly to defendant’s failure to testify. Rather, his argument addressed the issues of whether the lighting in the Womble residence was sufficient to enable Angela and her mother to identify the perpetrator of the crime, and whether the murder was done in order to facilitate the robbery, as required to establish the special circumstance allegations. The rule in Griffin v. California, supra, 380 U.S. 609, does not extend to comments on the state of the evidence (People v.

Anderson (1990) 52 Cal.3d 453, 472-473 [276 Cal.Rptr. 356, 801 P.2d 1107]), and was not implicated in the instance defendant cites. Defendant also complains the prosecutor committed Griffin error in arguing that “[t]he uncontradicted evidence is that the defendant was there, that the defendant did kill Willie Womble, that the defendant did shoot Angela Womble. That is uncontradicted.” It is true, as defendant asserts, that a prosecutor errs by referring to evidence as “uncontradicted” when the defendant, who elects not to testify, is the only person who could have refuted it. (People v.

Murtishaw (1981) 29 Cal.3d 733, 758, fn. 20 [175 Cal.Rptr. 738, 631 P.2d 446].) If, however, the evidence could have been contradicted by witnesses other than the defendant, the prosecutor may without violating defendant’s privilege against self-incrimination describe the evidence as “unrefuted” or “uncontradicted.” (Ibid:, see also People v. Miller (1990) 50 Cal.3d 954, 996 [269 Cal.Rptr. 492, 790 P.2d 1289]; People v.

Gray (1979) 91 Cal.App.3d 545, 552 [154 Cal.Rptr. 555].) Here, the defense challenged Angela’s identification testimony, implicitly contending that defendant was elsewhere than at the Womble residence on the night of the crime. However, the defense presented no alibi evidence to support the contention. (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal.Rptr. 652, 623 P.2d 213].) Thus, the prosecutor’s comment merely reflected the state of the evidence. (People v. Murtishaw, supra, 29 Cal.3d at p. 758, fn. 20.) 3.

Prosecutor’s Statement That He Was “Not Permitted to Discuss” Necessity of Verdicts on Robbery and Burglary Charges After discussing the special circumstance allegations, the prosecutor discussed the elements of the robbery and burglary charges. He argued, “[D]on’t think that because I may have already discussed the crimes of robbery and burglary in the context of special circumstances that they are not important—somehow that they are mere surplusages of Counts 3 and 4.

For reasons I’m not permitted to go into right now, they are not surplusages, they are important.” (Italics added.) Defendant now argues that the prosecutor improperly told the jury that its verdicts should be influenced by unstated law and insinuated that legal technicalities might undo the jury’s verdicts on some charges unless convictions were returned on all charges. This, he contends, violated his rights to personal presence, confrontation, jury trial, assistance of counsel, and due process. His failure to object to the comment at trial bars our review. (People v.

Green, supra, 27 Cal.3d at p. 27.) If we were to reach the point, we would find it meritless. We do not interpret the prosecutor’s statement as an invitation to let considerations other than the evidence affect the jury’s verdict. We see no error in an argument that impresses upon the jury the necessity of fulfilling its duty to decide each of the charges and allegations before it. E. Claims of Instructional Error 1. Eyewitness Identification (CALJIC No. 2.92) Defendant contends that the jury was incorrectly instructed on eyewitness identification factors.

Defendant is entitled to an instruction that focuses the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. (People v.

Wright (1988) 45 Cal.3d 1126, 1141 [248 Cal.Rptr. 600, 755 P.2d 1049].) The instruction should not take a position as to the impact of each of the psychological factors listed; it should also list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative. (Id. at p. 1143.) The trial court read the jury a modified version of CALJIC No. 2.92, set forth in the margin. We have noted that CALJIC No. 2.92 normally provides sufficient guidance on the subject of eyewitness identification factors. (People v.

Wright, supra, 45 Cal.3d at p. 1141.) Defendant challenges certain aspects of the instruction as given and the rejection of the instruction he proffered on the subject of eyewitness identification. We consider each of his contentions. a. Stress Defendant urges that the portion of the instruction dealing with the influence of stress on identification was erroneous, in that it was confusing and undermined the testimony of Dr. Loftus, defendant’s expert witness. The instruction directed the jury to consider “[t]he stress, if any, to which the witness was subjected at the time of the observation” (italics added).

Defendant contends this portion of the instruction undermined the defense’s ability to rely on the testimony of its expert witness, Dr. Loftus. We disagree. Dr. Loftus testified that the degree of stress or fright that a witness would experience during a crime such as occurred in this case would reduce his or her ability to acquire information accurately. That the situation was stressful was undisputed; the prosecutor acknowledged in closing argument that the stress level was “high” even before the first shot was fired. However, we do not view the instruction as casting doubt on Dr.

Loftus’s testimony in any significant way. Rather, it allowed the jury to determine the level of stress Angela experienced during the crime. b. Certainty of Identification Defendant further contends that the trial court erred in instructing the jury that the extent to which the witness was either certain or uncertain of the identification was a factor to consider in assessing eyewitness testimony. Defendant asserts that there was no evidence to support this instruction because Dr.

Loftus testified without contradiction that a witness’s confidence in an identification does not positively correlate with its accuracy. As a corollary to this claim, he argues the instruction was improper because it contradicted Dr. Loftus’s testimony, thereby implying the jury could not rely on her evidence. We cannot agree with defendant’s contentions. First, as defendant concedes, the jury remained free to reject Dr. Loftus’s testimony although it was uncontradicted. (People v.

Wright, supra, 45 Cal.3d at pp. 1142-1143.) The trial court was not required—indeed, was not permitted—to instruct the jury to view the evidence through the lens of her theory. Second, the jury was instructed that it should consider “[tjestimony of any expert regarding acquisition, retention, or retrieval of information presented to the senses of an eyewitness.” Thus, if the jury was persuaded by Dr. Loftus’s testimony, the instructions allowed it to infer that Angela’s positive identification was not necessarily an accurate one.

We cannot agree with defendant that the jury must have found these two portions of the eyewitness identification instruction confusing. His contention would be valid only if the jury were required to accept Dr. Loftus’s testimony; as we have seen, it was not. The trial court did not err, therefore, in instructing the jury on the “certainty” factor. c. Post-event Information Next, defendant contends that the trial court erred in refusing his request that the jury be instructed as follows: “Was the witness’ memory affected by intervening time and events?

Memory tends to fade over time, and studies show that a witness may subconsciously incorporate into her memory information from other sources.” The trial court did not err. The requested instruction was argumentative, in that it invited the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact. (People v. Wright, supra, 45 Cal.3d at p. 1135.) As such, it was properly refused. In addition, the concept that post-event information could contaminate a witness’s identification was adequately covered by other instructions.

The jury was told to consider “[wjhether the witness’ identification is in fact the product of her own recollection” and “[wjhether the witness’ memory was or was not affected by intervening time and events.” d. Suggestiveness Defendant contends that the trial court erred in refusing to instruct the jury as follows: “Did the witness identify the defendant before trial from photographs?

If so, were the photographs suggestive in any way?” Instead, the court proposed to instruct the jury to consider “[wjhether the witness was able to identify the perpetrator in a photographic lineup” and the “fairness of the photographic lineup.” Defense counsel agreed to the use of the word “fairness,” observing, “I’ve got no problems with that . . . it’s common everyday language.” Defendant now contends the trial court erred in (1) striking the adjective “alleged” before “perpetrator,” and (2) substituting the concept of “fairness” for “suggestiveness.” Defendant’s first contention is without merit.

Deletion of the word “alleged” from the instruction did not lighten the prosecution’s burden of proof. The jury was instructed that, for a guilty verdict, it must be proved beyond a reasonable doubt that defendant was the person who committed the crime. (CALJIC No. 2.91.) The jury was also instructed that defendant was not required to prove himself innocent or to prove that another person committed the crime. Moreover, defense counsel himself stated, “I don’t know why we need the word ‘alleged.’ Perpetrator, I mean, somebody did something—.” Defendant’s second contention is likewise meritless.

He complains that by changing defendant’s proposed instruction on “suggestiveness” into one on “fairness,” the court directed the jury’s attention away from the issue of conscious or subconscious suggestive influences (including those exerted by unofficial sources such as Angela’s family and friends) and instead focused the jury on intentional bias-inducing conduct by the police. It is unclear why defendant complains about this focus. Inasmuch as the instruction dealt with the fairness of lineups, it necessarily focused on official conduct.

The jury’s consideration of unofficial suggestive influences was sufficiently guided by the instructions to consider “[wjhether the witness’ memory was or was not affected by intervening time and events,” and “[wjhether the witness’ identification is in fact the product of her own recollection.” e. Multiple Descriptions Defendant requested that the jury be instructed as follows: “Did the witness give a description of the offender immediately after the alleged crime?

If so how well does the defendant fit that description?” The trial court declined to give the requested instruction, concluding that the subject of that request was adequately addressed by two factors listed in CALJIC No. 2.92, i.e., “The witness’ ability following the observation to provide a description of the perpetrator of the act” and “[tjhe extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness.” Defendant now complains that the instruction the trial court gave is designed for the case in which the eyewitness gives only one description of the perpetrator, not multiple descriptions as did Angela.

Defendant argues that by not acknowledging that the jury should consider whether a description given at the scene of the crime might deserve a different weight than a description given weeks or months later, the instructions indicated that Dr. Loftus’s views were unrecognized by the law. Defendant’s contention is incorrect. The instruction given does not limit the jury to consideration of any one description Angela might have provided. The jury was free to consider the extent to which defendant matched any of Angela’s descriptions of the perpetrators.

In fact, defendant’s proposed instruction would have been susceptible to the criticism that it lay undue stress on Dr. Loftus’s testimony that a description given nearer in time to an event is more reliable than one given at a later time. The trial court did not err in refusing it. In sum, the identification instruction given by the trial court met the requirements set forth in People v.

Wright, supra, 45 Cal.3d at pages 1141, 1143: it focused the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence, without improperly invading the domain of either jury or expert witness. 2. Proof Beyond Reasonable Doubt Defendant contends that certain instructions given the jury in this case undermined the constitutional requirement of proof beyond a reasonable doubt.

The trial court instructed the jury that defendant was presumed innocent until the contrary was proved and that the presumption placed on the state the burden of proving him guilty beyond a reasonable doubt. (CALJIC No. 2.90; §§ 1096, 1096a.) In four separate instructions—pertaining to the charged crimes, the required mental state, and the special circumstance allegations—the trial court told the jury that if one

interpretation of the evidence “appears to you to be reasonable and the other

interpretation to be unreasonable, it would be your duty to accept the reasonable

interpretation and to reject the unreasonable.” Defendant contends that by telling the jurors that their duty is to accept a guilty

interpretation of the evidence as long as it appears to be reasonable, the instructions (1) allow a finding of guilt based on a degree of proof less than that of the reasonable doubt standard (see In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068]) and (2) operate as an unconstitutional mandatory, conclusive presumption of guilt (see Carella v. California (1989) 491 U.S. 263, 265-266 [105 L.Ed.2d 218, 221-222, 109 S.Ct. 2419]; Sandstrom v. Montana (1979) 442 U.S. 510, 515 [61 L.Ed.2d 39, 45, 99 S.Ct. 2450]). We rejected similar contentions in People v.

Jennings (1991) 53 Cal.3d 334, 386 [279 Cal.Rptr. 980, 807 P.2d 1009] (Jennings), and while defendant criticizes our reasoning, we are not persuaded to reconsider our holding. Finally, we note that despite their use of the term “moral certainty,” the instructions given in this case do not suffer from the flaws condemned in Cage v. Louisiana (1990) 498 U.S. 39 [112 L. Ed.2d 339, 111 S.Ct. 328]. As we held in Jennings, supra, 53 Cal.3d 334, CALJIC No. 2.90 does not transform true reasonable doubt, as it traditionally has been defined, into some other degree of doubt. 3.

Consciousness of Guilt The trial court instructed the jury, based on CALJIC No. 2.06, that “[i]f you find that a defendant attempted to suppress evidence against himself in any manner, such as by refusing to participate in the lineup, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt, ffl However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration.” Defendant contends the giving of this instruction was error for two reasons.

First, he argues that it characterized his refusal to participate in the lineup as an attempt to suppress evidence even though his refusal did not demonstrate a consciousness of guilt and its admission into evidence violated the Constitution. This argument is without merit.

We have already concluded that defendant’s refusal to participate in the lineup was properly admitted and supported an inference of consciousness of guilt. (Ante, at pp. 1221-1224].) The giving of the instruction, therefore, was proper (and beneficial to defendant, to the extent that it made clear the refusal did not, in itself, suffice to establish his guilt). (See People v. Sudduth (1966) 65 Cal.2d 543, 546-547 [55 Cal.Rptr. 393, 421 P.2d 401] [refusal to give breath sample]; People v. Huston, supra, 210 Cal.App.3d at p. 218; People v.

Roach (1980) 108 Cal.App.3d 891, 894 [166 Cal.Rptr. 801] [refusal to give urine sample].) Second, he argues that even if the jury could properly have been authorized to consider the lineup refusal as evidence of consciousness of guilt, the instruction was improper because it told the jury that the lineup refusal was only one example of evidence that could be considered as consciousness of guilt.

Defendant argues the instruction encouraged the jury to examine all of the evidence—without guidance from the trial court—to determine whether any of it demonstrated an attempt to suppress evidence, regardless of whether such a finding was in fact supported by the law or evidence. This argument is equally meritless. The instruction simply allowed the jury to infer consciousness of guilt if it found that defendant attempted to suppress evidence against himself. Defendant reads too much into the phrase “in any manner”: it merely acknowledges that there are many methods by which evidence may be suppressed.

The succeeding phrase—“such as by refusing to participate in the lineup”—pinpoints the evidence supporting the inference. Defendant contends the instruction violates the rule articulated in People v. Hannon (1977) 19 Cal.3d 588 [138 Cal.Rptr. 885, 564 P.2d 1203]. There we held the giving of a modified version of CALJIC No. 2.06 to be erroneous because the trial judge failed to make the preliminary determination that there was evidence in the record which, if believed by the jury, would sufficiently support the desired inference of consciousness of guilt.

Instead, the trial court improperly left that question of law up to the jury. (Id. at pp. 597-598.) By contrast, in this case the trial court, in giving the instruction, implicitly determined as a matter of law that the evidence of defendant’s refusal to stand in the lineup, if credited by the jury, could warrant an inference of consciousness of guilt if the jury found that the refusal was intended to suppress evidence. (See People v.

Crandell (1988) 46 Cal.3d 833, 870 [251 Cal.Rptr. 227, 760 P.2d 423].) Defendant does not suggest any way in which the jury might have been misled regarding the sort of evidence it could consider as indicating consciousness of guilt. If he believed the instruction required clarification, it was incumbent on him to request it. (People v. Crandell, supra, 46 Cal.3d at pp. 870-871.) He did not do so. Reading the instructions as a whole, as the jury itself was directed to do (CALJIC No. 1.01; see People v.

Pensinger, supra, 52 Cal.3d 1210, 1246), we conclude they correctly guided the jury’s consideration of the evidence. 4. Kurtzman Error Defendant contends that the giving of an expanded version of CALJIC No. 8.75 improperly skewed the jury’s deliberative process

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