THE PEOPLE, Plaintiff and Respondent, v. ANDREW LAMONT BROWN, Defendant and Appellant, 31 Cal. 4th 518

Opinion WERDEGAR, J. Andrew Lamont Brown was convicted in 1992 in Riverside County Superior Court of the robbery and first degree murder of Christina Ann Barraza Ramirez. (Pen. Code, §§ 187, 211; all further statutory references are to this code unless otherwise indicated.) The jury also sustained a special circumstance allegation that defendant committed the murder while engaged in the commission of a robbery (§ 190.2, former subd. (a)(17)(i), now redesignated subd. (a)(17)(A)) and two enhancement allegations that he personally used a firearm in the commission of his crimes (§ 12022.5, subd. (a)).

On March 5, 1992, the 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. FACTS A. Guilt Phase Levi Gardner bought a Mitsubishi Mighty Max pickup truck on November I, 1988. Defendant asked him if he would like to buy some deep-dish tire rims for his truck. Gardner replied that he would have to see them before committing to buying some. Defendant said he could obtain some. P. M. (a 15-year-old minor) overheard the conversation and confirmed it.

In November 1988, defendant was living “off and on” in a home near Perris, California, with Mark Bender, Broderick Fields, P. M., Andrew White and others. Defendant told White he “was going to do a jack move to get some rims” (by which he meant he was going to “rob somebody at gunpoint for their car”) and asked White to join him. White declined. On November 11, 1988, defendant, Fields, Mark Bender and P. M. left in Bender’s Oldsmobile Cutlass and drove around, looking for some deep-dish rims to steal. Joe Ramirez was married to victim Christina Ramirez.

In November 1988, he owned a red 1985 Nissan minitruck with a red camper shell. It had been lowered (“like a low rider truck”) and had a Kenwood brand stereo and amplifier inside. It also had distinctive deep-dish tire rims, each bearing small decorative holes and custom painted red to match the truck. The rims were locked on the axles except for the front left rim. On November 11th, a little before 9:00 p.m., Christina left her home to take her cousins, who had been visiting, to her sister’s apartment. She took her sister’s car but soon returned, complaining the brakes were not working well.

Her husband told her to take his truck instead. She planned to stop at Dairy Queen for a snack on the way back but had no money, so Joe gave her a $50 bill because it was the smallest bill he had. She then left in the truck. Christina went to her parents’ home in Riverside but left with her sister around 9:00. She had a quick meal with her sister at a restaurant and then drove alone in the red truck towards the Dairy Queen in Riverside. The car containing defendant, Fields, Bender and P.

M. was traveling in the opposite direction when defendant saw the rims on Christina’s truck and exclaimed, “Those are the ones we need.” They made a U-tum and followed the victim for two traffic lights. Christina eventually stopped for a red light, and Bender stopped directly behind her. According to P. M.’s testimony, defendant jumped out carrying a .38-caliber pistol, ran to the driver’s side of the red track, and fired one shot through the window, shattering it. He then pulled Christina out and got into the track from the driver’s side.

Fields also jumped from Bender’s car at this time, ran to the passenger side of the track and got in. Both the Cutlass, now with just Mark Bender and P. M. inside, and the red Nissan track, driven by defendant with Fields as a passenger, then left the scene. They met later at Perry Bender’s house. Juan Williams was in a brown Mercedes-Benz, stopped at the red light directly behind Mark Bender’s Cutlass. He saw only one man run up to the driver’s side of the red truck. He described the assailant as a young Hispanic male, between five feet three inches and five feet six inches tall.

The assailant threw the victim from the truck and then drove off in it. Williams testified he did not see a second man enter the track on the passenger side, although a police officer testified later in the trial that Williams told him the night of the murder that he had seen two men ran up to the truck. Rena Stanfill was in a Ford Bronco behind Williams’s Mercedes. She was about 30 to 35 feet from the crime. She described the car in front of the Mercedes as a medium-sized American car. In front of that car was a red or maroon pickup track.

She saw two men alight from the American car and run to the red pickup truck. One man, an African-American about five feet 10 inches tall, ran to the driver’s side and pulled a woman from the truck; the victim struck the pavement face first. The second man, who was either Hispanic or African-American, jumped into the passenger side of the track. The two men then left the scene in the truck, followed by the American car. Stanfill, who was driving with her windows rolled up and the radio turned on, did not hear a gunshot. Christina Ramirez suffered a single gunshot wound to the neck.

The bullet entered the left side of her neck and traveled downward, injuring and lodging in her spine. She did not die immediately, but expired on December 21, 1988; the gunshot wound was the cause of death. The bullet recovered from her body was consistent with having been fired from a .38-caliber handgun. Around 11:45 that night, Mark Bender, with Fields and P. M., arrived in the Cutlass at Perry Bender’s home. (Perry is Mark Bender’s brother.) Mark was visibly upset; inside Perry’s home, he blurted out: “I know he shot her. I know she is hurt bad.” He was referring to defendant.

Around midnight, defendant arrived in the Ramirezes’ red truck, playing loud music on the stereo. He had a .38-caliber handgun. When Perry asked him how he obtained the truck, he said he got it in Riverside and that he “[s]moked the bitch.” Perry saw defendant rifling through a woman’s purse; defendant found $50 in it. Sometime between 11:00 p.m. and 1:00 a.m., Timothy Gardner, Levi’s brother, saw defendant in front of Harb’s Liquor Store/Market. He was sitting in a red minitruck with a camper shell and deep-dish rims; the stereo was playing loudly. Defendant asked him where Levi Gardner was.

He asked Timothy Gardner to tell his brother that he had some “deeps” for him. Defendant apparently parked the truck in a secluded place in the hills of Mead Valley. On November 12th, he offered to sell a single deep-dish tire rim to Levi Gardner for $50. It was painted red and had circular holes in it. Gardner wanted to see all four rims before committing to the purchase, so they got in Gardner’s truck and defendant directed him to a remote location in the hills. Down a dirt road, they came upon a red pickup truck with a camper shell. It had deep-dish rims, but was missing one from the front.

Gardner had a “bad feeling” about the deal and declined to buy them. Defendant offered to lower the price if Gardner helped him remove the other three rims, but he declined. Kevin Davis also saw the red truck in the Mead Valley hills sometime in November 1988. Defendant offered to sell him a Kenwood brand car stereo, amplifier and speakers, but he declined. He once saw defendant in the parking lot of a liquor store with a rim matching those on the victim’s truck. He had also seen defendant with a .38-caliber handgun.

Tony Dilleworth also testified that defendant tried to sell him a Kenwood brand car stereo, amplifier and speakers in November 1988. Acting on a tip, the Riverside Sheriff’s Department located and towed the victim’s truck from the hills. It was missing one wheel and all of its stereo components. Heavy scratch marks around the lug nuts suggested someone had used the wrong tool to try and remove the remaining wheels. Police found a small amount of blood in the doorjamb on the driver’s side. Defendant apparently blamed Rick Kinney, an acquaintance, for the truck’s disappearance from the hills.

He later confronted Kinney, saying: “Where’s my truck at? I took that truck that you’re riding around today, that red truck in the hills, that was mine.” Manny Kelly, who was with Kinney at the time, overheard this conversation. The day after the crime, a crowd of people, including defendant and Andrew White, were gathered in the early evening in front of a liquor store.

According to White, defendant described for the group how he acquired the red pickup truck, saying he “smoked the bitch.” When people in the group expressed skepticism at this account, defendant swore it was true and invoked his gang, Fruit Town, as proof it was true. Defendant asked White to help him remove the rims from the truck and, although White had experience in such things because he had been a car thief, he declined because he had heard that defendant had shot a person in order to obtain the truck. B.

Penalty Phase The prosecution’s case in aggravation consisted of evidence of eight different violent crimes defendant had committed, as well as victim impact evidence. On January 12, 1988, Flecia Bennett lived with defendant and their two children. She wanted to buy some cigarettes at the store. Defendant did not want her to go and socked her in the mouth, drawing blood. In response, Bennett hit him in the head with a chair.

Defendant produced a .38-caliber handgun and, pointing it at Bennett’s face from a distance of two feet, said, “Bitch, I’m going to kill you.” On January 27, 1988, Sharon Lee Baker was working as the desk clerk at the University Lodge in Riverside. Defendant walked up to the front desk, produced a large knife, called Baker a “bitch,” and ordered her to give him all her money or he would kill her. She said the bartender would be returning soon and defendant should leave. He left but promised to come back with a gun to kill her. He came back a few days later with a woman and two children, trying to rent a room.

The police were called, and defendant was arrested. On November 5, 1988, six days before Christina Ramirez was shot, defendant, Broderick Fields, R M. and Mark Bender were out driving when they saw an Oldsmobile Cutlass Supreme with straight lace rims at a gas station. The car was occupied by two teenagers, Gloria A. and Monica R.; the driver, 20-year-old Danny Alcaraz, was looking under the hood. Defendant pointed a .38-caliber handgun at the girls and ordered them out of the car. They fled, and defendant jumped into the car and drove away.

Defendant traded the rims to Mark Bender in exchange for a black Ford Pinto. Andrew White saw the straight lace rims on Bender’s car, but Bender later removed them. The rims were recovered from Bender’s residence. The Oldsmobile was found in a hilly area of Mead Valley; the tires and stereo system were missing. On November 14, 1988, three days after Christina Ramirez was shot, Danny Coria was riding around with his friend Simon Míreles. Coria was driving his Suzuki Samurai with expensive deep-dish chrome rims.

He stopped at a park, whereupon a Chevy Blazer or Jimmy appeared; Willie Woods was the driver, and defendant was in the front passenger seat. One of them yelled, “Get out,” and then a shot was fired, striking Coria in the arm and breaking it. One of the robbers opened the door of the Suzuki, and both Coria and Míreles fled on foot. Although Coria identified Woods as the shooter, he was unsure by the time of defendant’s trial and thought defendant was the shooter.

Woods testified that, although he had pleaded guilty to the crimes against Coria, defendant was the one who actually fired the shot that struck Coria in the arm. The trial court took judicial notice that the transcript of Woods’s plea hearing showed Woods never denied the charges that he attempted to murder and rob Coria, or that he personally used a firearm in those crimes. The very next day, on November 15, 1988, Francisco Carillo drove to Castle Park in Riverside with his brother Silvester Carillo and three others. Carillo was driving his 1979 Grand Prix, which had been lowered.

They left the park around midnight. A Chevy Blazer, driven by Willie Woods with defendant in the front passenger seat, pulled alongside. Defendant jumped out and shot Francisco Carillo in the arm, the bullet passing through his chest and heart. Francisco slumped forward and stepped on the gas. Another shot rang out. Silvester was able to steer the car and drive away. Kevin Davis, who was also in the Blazer, positively identified defendant as the shooter.

Francisco Carillo died from a single gunshot wound; forensic evidence showed the weapon had been fired from less than three feet away, and possibly as little as 16 inches away. Maria Ramirez, Christina’s mother-in-law, testified that nothing in her family was the same after Christina’s murder. Her son, Joe, became severely depressed, stopped going to work, and obtained several guns. He stayed in his bedroom for nearly a year, coming out only to eat and go to the bathroom. He threatened suicide once, and displayed a lot of anger, punching holes in walls and doors. He blamed himself for Christina’s death.

Maria and her husband never went far from home because they had to keep watch on their son. She had him committed for observation and counseling, but this did not help because her son was such a private person. Once, when she was late coming home, he was literally shaking and crying, overcome by the possibility that she had been shot. His entire personality had changed, and he was overcome with fear. Maria Ramirez said her son was doing better by the time of trial; he had rid himself of his guns and was taking classes to become a firefighter.

He did not like to testify in court because he wanted to focus on the future and not the past. When asked whether her son still had fears “to this day,” she replied, “Yes, they’ll be with him for his lifetime.” Christina Ramirez’s mother, Susie Barraza, also testified. She stated that Christina was an easygoing girl who had a lot of friends. She met Joe, and they decided to marry although Joe was only 19 years old and Christina only 17 years old. They got married in Las Vegas on October 15, 1988, less than a month before the shooting.

A wedding reception had been planned for November 12th; Christina was shot the day before. Mrs. Barraza had a hard time coping with her daughter’s death and started therapy, which continued at the time of trial. She was afraid to venture out at night and always had someone accompany her when she did go out. Although defendant did not testify at the penalty phase, he called several witnesses. Their testimony apparently served one of two purposes. First, he called witnesses who attempted to raise a doubt as to his guilt of some of the uncharged offenses on which the prosecution relied for aggravating evidence.

Second, he presented evidence relevant to his personal characteristics that might be considered mitigating, such as his deprived and violent childhood and borderline intelligence. Raul Valadez testified he was in the car when Francisco Carillo was shot and that the gunman held the gun in his right hand. A police officer had previously testified defendant was left-handed. Robert Hathaway, a detective for the Riverside Police Department, testified that Sharon Lee Baker had described her attacker at the University Lodge as a Black male, 35 to 40 years old, weighing approximately 200 pounds.

When arrested, defendant was 18 years old and weighed 160 pounds. Hathaway testified that Baker was unable to identify her attacker from a photographic lineup. William Palmer, a Riverside County probation officer, testified he interviewed Willie Woods when preparing the probation report following Woods’s guilty plea to the attempted murder of Danny Coria. Woods told him that he (Woods) was innocent and that he had not even been present at the scene of the crime, having spent that evening in a club and theater with friends.

He knew the identities of the true culprits, however, and identified someone named “Torrey” as the actual gunman. Woods said he borrowed the stolen Suzuki from Broderick Fields, thereby explaining why he was in Coria’s car when police arrested him. Paul Sham, a criminalist employed by a California Department of Justice regional crime lab, testified he examined the rifling characteristics on the bullets recovered from Christina Ramirez, Danny Coria, and Francisco Carillo and concluded they had been fired from three different '.38-caliber handguns.

Wesley Armstrong, defendant’s uncle, testified and provided background information about defendant’s childhood. Lula Armstrong McMaryion was his mother, defendant’s grandmother. He had several siblings, one of whom was Catherine Armstrong Williams, defendant’s mother. When defendant was young, he was in the care of his mother. Once, when defendant was five or six years old, Armstrong went to Catherine’s apartment to pick defendant up and take him to McMaryion’s home for babysitting. Armstrong found defendant alone in the apartment, in a dark closet with the door closed.

Armstrong surmised that defendant had been crying because his eyes were swollen. On the drive to McMaryion’s home, defendant appeared to be in pain. Armstrong lifted defendant’s shirt and discovered he had bruises and open wounds on his back, as though he had been whipped with an electrical cord or a clothes hanger. Defendant was later removed from his mother’s custody and placed first in foster care, then with his grandmother. McMaryion was very lenient with defendant, explaining that because defendant had been abused as a child, she did not want to impose too much discipline on him.

Armstrong wished to remove defendant from his mother’s home in Compton and have him come live with him in Cerritos because the neighborhood in Compton was getting very rough, with a lot of gang activity. Defendant stayed with McMaryion until his teenage years. Armstrong loved his nephew. Armstrong’s account of defendant’s young life was confirmed by defendant’s mother, Catherine Williams. Williams testified she was 16 years old when she gave birth to defendant. His father was Oscar Brown, with whom she lived for a time. They would fight, and he struck her several times in defendant’s presence.

She left him after he shot her while she was holding defendant. When defendant was about three years old, she was advised defendant was a hyperactive child, but she did not seek any treatment or medication for him. When she was 19 years old, she took a parenting class and attended some therapy sessions in an attempt to regain custody, but she was unsuccessful. She did not approve of defendant living with her mother because there was no discipline and the neighborhood was too dangerous. She did not recall whether she ever struck defendant.

Lula Mae Armstrong McMaryion, defendant’s grandmother, testified that defendant came to live with her when he was five years old and stayed until he was 17 or 18 years old. When defendant was six, school authorities told her defendant could not sit still in class, but she never sought any treatment or medication for him. Confirming other witnesses’ descriptions of the neighborhood, she testified she and defendant sometimes slept on the floor because they were afraid bullets would come through the windows. She testified she believed defendant was not guilty.

Angela Matthews testified she was defendant’s cousin, she was close to him, she loved him and she did not want to see anything happen to him. Geneva Cofield was defendant’s foster mother. She took custody of him when he was about five years old, and she confirmed he had welts and cuts over a large percentage of his body. Some of the injuries were old and some were new. He had wounds on his buttocks and back, as well as on his penis. He also had some cigarette bums on his body.

She testified defendant told her that he had been beaten by a man named “RC” as well as by his mother, and that his mother would take his clothes away so he could not leave home. When Cofield first took custody of defendant, he was very skinny as if he were undernourished. He also suffered from diarrhea, so much so that she took him to the hospital. She was very fond of defendant, and he asked if he could call her “mama” and her husband “dad.” She thought that if she had been allowed to keep custody of defendant, he would not be in the trouble in which he then found himself.

She noticed that when defendant would obtain a toy, he would sometimes tear it up and bury it in the ground. As a result, she had defendant see a psychologist. Kay Miller, Cofield’s daughter, testified she was 17 years old when defendant came to their home as a foster child. Miller corroborated Cofield’s account of defendant’s injuries and his unhealthy appearance. Miller testified she enjoyed him as a foster brother and missed him when he was removed from the home.

Mack Taylor, who was a children’s services worker with the Los Angeles Department of Social Services, testified that his department’s records corroborated Cofield’s account of defendant’s childhood injuries. Taylor also testified that he became involved in the case when defendant was 12 years old, that defendant’s mother, Catherine Williams, wished to regain custody of defendant, but that his grandmother, Lula McMaryion, opposed a change in custody. The resulting conflict between defendant’s mother and grandmother caused defendant to experience a lot of stress. Dr.

Chin Choo testified she was a resident in psychiatry at the Martin Luther King Medical Center when, on January 16, 1987, defendant, then 17 years old, was admitted into the emergency room. He was delusional and disoriented, with impaired memory, rambling speech and inappropriate affect. He was also paranoid, saying “the Crips are after me.” He had poor impulse control, suicidal/homicidal ideation tendencies, and appeared to be responding to internal stimuli.

Because of his apparent psychosis, he was placed in four-point restraint for his own protection and that of others, and prescribed Haldol, a psychotropic medication. Defendant admitted to smoking Sherman cigarettes, that is, cigarettes laced with phencyclidine (PCP). By January 19th, his condition had improved and he was released. Dr. Choo testified on cross-examination that defendant’s psychosis could have been caused by ingesting PCP. Dr. Nancy Kaser-Boyd, a clinical psychologist, testified that defendant was one of the most physically abused children she had ever seen.

In addition to the beatings and burnings, she opined that he was subjected to psychological abuse, such as being isolated in a dark closet, deprived of his clothes, beaten while he was naked, and being allowed to watch while his mother was beaten. Being removed from his mother’s custody, not really knowing his father, and then seeing his mother and grandmother fight over custody all contributed to his profound feelings of vulnerability, anxiety, and depression. Such children are at higher risk for drug and alcohol abuse.

The witness noted that defendant reported waking in the night and worrying someone was coming to get him; she likened defendant’s experience to posttraumatic stress disorder. These experiences also led to arrested emotional development which, coupled with his probable hyperactivity as a child, his low intelligence (Dr. Kaser-Boyd testified defendant had an IQ of 77), and his having attended six different schools between the seventh and 11th grades, all contributed to his poor academic performance. Dr.

Kaser-Boyd testified that defendant should have been in, special education, but his guardian, his grandmother, was not sophisticated enough to attend to defendant’s special needs. Defendant’s two aunts (Louise Matthews and Mary McGowan), his girlfriend (Flecia Bennett), and a high school principal (Carl Phillips) also testified on defendant’s behalf, as did Professor James Johnson, who described the community in Compton where defendant had grown up. II. DISCUSSION A. Guilt Phase Issues 1. Admission of Broderick Fields’s Out-of-Court Statements a. Facts Juan Williams testified for the defense.

He stated he was in a brown Mercedes-Benz behind the victim’s truck when the crime occurred. He observed a “slight[ly] built Hispanic [man]” go from the passenger side of the car in front of him to the driver’s side of the pickup truck, pull the female driver out, and throw her to the street. Williams was at most “two car lengths” from this scene. The Hispanic-looking man then entered the driver’s side of the truck and drove off. Williams did not see a second man.

This testimony tended to undermine the testimony given by another eyewitness, Rena Stanfill, who testified that while seated in the car behind Williams’s car, she saw two men run up to the victim’s truck, one on each side, and that the African-American man went to the driver’s side while the man who could have been either Hispanic or African-American went to the passenger side of the truck. Defendant is an African-American; the second man, alleged to be Broderick Fields, is a medium-to-dark-complected African-American male standing between 5 feet 11 inches to six feet one inch tall.

The prosecution sought to cast doubt on Williams’s testimony by calling Detective Esquivel to testify in rebuttal to a statement Broderick Fields had made to him in an out-of-court interrogation. Defendant objected, claiming admission of Fields’s out-of-court statements to Detective Esquivel would violate the Aranda/Bruton rule and his Sixth Amendment right to confront and cross-examine the witnesses against him, and that the statements did not comprise proper impeachment or a proper declaration against penal interest excepted from the hearsay rule under Evidence Code

section 1230. The trial court rejected these objections, the first two impliedly, the latter two expressly. Before Esquivel testified, the trial court cautioned the jury that Esquivel’s testimony was for the limited purpose of impeachment. Detective Esquivel then testified he interrogated Fields on January 13, 1989. Fields admitted to him he was in Mark Bender’s car, directly behind a red truck on the night of the crime; he said that he got out and went to the passenger side of the truck, entered the truck, and left the scene in the truck.

Nowhere in Esquivel’s recounting of Fields’s statements did he reveal defendant’s name or indicate defendant was the person who entered the victim’s truck from the driver’s side, although the implication was that someone did so and drove it away with Fields sitting in the passenger seat. b. Discussion Defendant raises both constitutional and statutory arguments against the admission of Esquivel’s testimony recounting Fields’s out-of-court statements. “It is well established that ‘we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.’ ” (People v.

Leonard (1983) 34 Cal.3d 183, 187 [193 Cal.Rptr. 171, 666 P.2d 28].) Accordingly, we first address defendant’s statutory arguments. (See People v. Duarte (2000) 24 Cal.4th 603, 610 [101 Cal.Rptr.2d 701, 12 P.3d 1110].) Defendant first contends the trial court erred by admitting Esquivel’s testimony because the evidence was not relevant to impeach Juan Williams’s testimony. (Evid.

Code, §§785 [“The credibility of a witness may be attacked or supported by any party, including the party calling him”], 210 [defining “relevant evidence”].) At the threshold, respondent argues that defendant did not object on the ground of relevance and thus should be held to have forfeited this issue for appeal. Although defendant did not register a formal and specific objection on relevance grounds, he did complain the proposed testimony was not proper impeachment.

The trial court spoke as if it were deciding the question of relevance, once stating that “[i]t looks to me as though this [evidence] is relevant” and later saying it found “the area of inquiry is relevant for rebuttal [of Juan Williams].” Defendant may thus have believed his objections in limine were understood by the trial court to encompass the issue of relevance. We conclude the issue is properly before us. Turning to the merits, we note Williams testified he saw one man, a slightly built Hispanic, go to the driver’s side of the victim’s truck.

Defendant claims Fields’s out-of-court statement that he (Fields) went to the passenger side door of the same truck does not undermine or impeach Williams’s testimony.

Neither defendant nor respondent apprehends, however, that Williams also testified he did not see a young African-American man enter the truck from the passenger side. “As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v.

Rodriguez (1999) 20 Cal.4th 1, 9-10 [82 Cal.Rptr.2d 413, 971 P.2d 618].) Williams’s ability accurately to perceive and recall is certainly called into question if, from a distance of “[a]t the most two car lengths,” he did not see the second man. Although, as defendant points out, there could be some reasonable explanation for Williams’s failure to see the second man, that possibility is insufficient to establish that' the trial court’s decision to admit Fields’s extrajudicial statements was arbitrary or capricious.

Accordingly, we conclude the trial court did not abuse its discretion in finding the evidence relevant. Defendant next contends Fields’s statement to Detective Esquivel was not a true declaration against Fields’s penal interest and thus was not properly excepted from the hearsay rule by Evidence Code

section 1230. That

section provides: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” (Ibid.) We addressed the procedural prerequisites for the declaration-against-penal-interest exception to the hearsay rule in People v.

Duarte, supra, 24 Cal.4th 603.

There we explained that in order to qualify for admission, “[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (Id. at pp. 610-611.) The first prong of this test is satisfied because the parties stipulated to Fields’s unavailability, possibly because he had exercised his privilege against compelled self-incrimination. (Id. at pp. 609-610.) Defendant claims Fields’s statements to Detective Esquivel fail the second part of the test because the prosecution, as the proponent of the evidence, failed to establish that Fields’s statements were truly contrary to his penal interests.

Defendant argues the transcript of the interrogation indicates Fields “clearly tried to distance himself from being the shooter” and that he “denied having any knowledge that a crime had been committed.” We disagree with defendant’s selective reading of the record. During the hearing to determine the admissibility of Fields’s statements, the trial court read into the record part of the transcript of Fields’s interrogation by Detective Esquivel.

It indicates Detective Esquivel informed Fields he was under arrest for suspicion of murder and that Fields said he saw a person run to the other side of the truck with a gun. Fields told Esquivel he heard a gunshot, although defendant denied to Fields that he shot the victim, saying he shot out the window and the victim fainted. Fields admitted he went to the passenger side of the truck and got in, resignedly exclaiming: “I mean, fuck it, and that’s how it went.” The trial court concluded Fields’s statement was “reasonably] against his penal interest.

He doesn’t want to do any time but I think it’s fairly obvious he isn’t going to walk out of there. He is under arrest.” On these facts, we conclude the trial court did not abuse its discretion in finding Fields spoke to Esquivel knowing his statements were against his penal interest. Although he does not admit to firing the fatal shot, he knew he was being charged with murder, he admitted to hearing a gunshot, and he admitted to participating in stealing the victim’s truck.

These statements were clearly against his penal interests; his denial of having been the shooter did not absolve him of the crimes to which he admitted. By admitting he entered the car and assisted defendant in fleeing the scene, he was admitting his complicity in a robbery murder, an admission “so far contrary to the declarant’s interests ‘that a reasonable man in his position would not have [admitted it] unless he believed it to be true.’ ” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 146, p. 857, quoting Evid. Code, § 1230; People v. Duarte, supra, 24 Cal.4th at pp. 610-611; see People v.

Fuentes (1998) 61 Cal.App.4th 956, 961 [72 Cal.Rptr.2d 237].) Defendant also contends Detective Esquivel’s testimony as to Fields’s statements fails the third requirement for admissibility because the prosecution did not show the evidence was sufficiently trustworthy to permit its admission without having the declarant subject to cross-examination. “To determine whether the declaration passes the required threshold of trustworthiness, a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.]” (People v.

Cudjo (1993) 6 Cal.4th 585, 607 [25 Cal.Rptr.2d 390, 863 P.2d 635].) The trial court found the evidence bore sufficient indicia of trustworthiness, a decision we review on appeal for abuse of discretion. (Ibid.; People v.

Gordon (1990) 50 Cal.3d 1223, 1250-1251 [270 Cal.Rptr. 451, 792 P.2d 251].) As noted, there was evidence from which the trial court could reasonably conclude Fields knew his statement was against his penal interest: He knew defendant had a gun, he knew defendant ran up to the victim’s truck, he knew defendant fired the gun and pulled the victim from her truck, and he knew they were stealing the victim’s truck.

Although he denied personally committing the murder, he did not attempt to cast blame for the murder on defendant, repeatedly saying he did not know if the victim had died, and that defendant had told him he merely shot out the window and the victim fainted as a result. This was thus not a case in which Fields admitted to some culpability in order to shift the bulk of the blame to another. Although he did say defendant had a gun, his story nevertheless admitted he and defendant were relatively equally to blame.

Like the trial court, we conclude the circumstances surrounding Fields’s statement indicate it “was sufficiently rehable to warrant admission despite its hearsay character.” (People v. Cudjo, supra, 6 Cal.4th at p. 607.) The trial court therefore did not err in ruling the evidence was admissible under Evidence Code

section 1230. There being no statutory basis to find the trial court erred in admitting Detective Esquivel’s testimony recounting Fields’s out-of-court statements, we turn to defendant’s constitutional arguments. Defendant first contends admission of Esquivel’s testimony violated the Aranda/Bruton rule. (See ante, fn. 3.) We must reject this contention at the threshold. The Aranda/Bruton rule addresses the situation in which “an out-of-court confession of one defendant . . . incriminates not only that defendant but another defendant jointly charged.” (People v.

Fletcher (1996) 13 Cal.4th 451, 455 [53 Cal.Rptr.2d 572, 917 P.2d 187], italics added, fn. omitted.) “The United States Supreme Court has held that, because jurors cannot be expected to ignore one defendant’s confession that is ‘powerfully incriminating’ as to a second defendant when determining the latter’s guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant.” (Ibid., italics added.) In this case, Fields was not jointly charged or tried with defendant, but was separately tried and convicted of murder.

Accordingly, the Aranda/Bruton rule does not preclude admission of Fields’s extrajudicial statements against defendant. Defendant next argues his constitutional right to confrontation under the Sixth Amendment to the United States Constitution was violated by the admission of Fields’s out-of-court statements to Detective Esquivel. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This federal constitutional right to confront adverse witnesses in a criminal prosecution applies to the states (Pointer v.

Texas (1965) 380 U.S. 400 [13 L.Ed.2d 923, 85 S.Ct. 1065]) and is also guaranteed independently by the California Constitution (Cal. Const., art. I, § 15) and by statute (§ 686). The primary reason an accused is entitled to confront adverse witnesses is to permit cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 [89 L.Ed.2d 674, 106 S.Ct. 1431]; Alvarado v. Superior Court (2000) 23 Cal.4th 1121 [99 Cal.Rptr.2d 149, 5 P.3d 203].) “[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.

Indeed, ... to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.” (Pointer v. Texas, supra, at p. 405.) “[T]he right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” (Chambers v. Mississippi (1973) 410 U.S. 284, 295 [35 L.Ed.2d 297, 93 S.Ct. 1038]; People v.

Cromer (2001) 24 Cal.4th 889, 897 [103 Cal.Rptr.2d 23, 15 P.3d 243] [“Notwithstanding the importance of the confrontation right, it is not absolute”].) The high court has recently explained that admission of hearsay evidence is not inconsistent with the confrontation clause if such statements fall within a “ ‘firmly rooted hearsay exception’ ” or they contain “ ‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything to the statements’ reliability.” (Lilly v.

Virginia (1999) 527 U.S. 116, 124-125 [144 L.Ed.2d 117, 119 S.Ct. 1887] (plur. opn.); id. at p. 140 (conc. opn. of Breyer, J.).) Because we have previously concluded that the evidence of Fields’s out-of-court statements bore sufficient guarantees of trustworthiness, we find no confrontation clause violation occurred when the trial court admitted the statements into evidence. Even, however, were we to assume the trial court erred by admitting Fields’s statements, any error was harmless beyond a reasonable doubt (Lilly v.

Virginia, supra, 527 U.S. at pp. 139-140) because the evidence of defendant’s guilt was overwhelming. Eyewitness Rena Stanfill observed the crime and R M. corroborated her account, identifying defendant. Defendant was linked to the stolen truck and its distinctive deep-dish rims in several ways. Andrew White heard him in front of Harb’s Liquor Store/Market admitting he shot through the window of the victim’s truck and pulled her out to the street before stealing her truck.

Defendant also told Perry Bender he “smoked the bitch,” and Mark Bender, another eyewitness, told his sister-in-law that defendant hurt the victim. Although Detective Esquivel testified and recounted Broderick Fields’s out-of-court statements, the account was sanitized, defendant’s name was not mentioned, and the testimony was brief. Moreover, the jury was told the evidence was for the limited purpose of impeaching Juan Williams and was not to be used as substantive evidence of defendant’s guilt. (See post, pt. II.A.2.) In sum, we find no constitutional error.

We also find that, even if we assume error, it was harmless beyond a reasonable doubt. 2. The Trial Court’s Comment on Fields’s Out-of-Court Statements Before permitting the jury to hear Detective Esquivel’s testimony recounting Fields’s extrajudicial statements, the trial court cautioned the jury, saying: “[Tjhis is to advise you and instruct you that the questions to be asked of Sergeant Esquivel are asked for the burden of proving and sole purpose[] of impeachment of any of the testimony of Defense Witness Juan Williams who was called yesterday and cannot be considered by you for any other purpose.

You will be further instructed on that later but this is offered for the limited purpose of impeachment. It is impeachment of Juan Williams under the instructions that you will receive.” Defendant contends the trial court violated his constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as analogous state constitutional guarantees, by commenting on the evidence in this manner. Defendant claims that the wording of the instruction improperly removed an issue from the jury.

In particular, he contends that because the court instructed the jury that Detective Esquivel’s testimony regarding Fields’s statements “is impeachment of Juan Williams,” rather than “is for the impeachment of Juan Williams,” the court improperly commented on the evidence. Defendant magnifies the seriousness of this issue, for it appears the trial court merely misspoke, as evidenced by its earlier statements that the evidence was for “the sole purpose of impeachment” and for “the limited purpose of impeachment.” In any event, even were we to assume error, it could have caused no prejudice.

The jury was instructed that it should consider the instructions as a whole and that it was “the sole judge[] of the believability of a witness and the weight to be given to the testimony of each witness.” More specifically, the court instructed the jury that “I have not intended by anything I have done or any questions I may have asked or by any ruling I may have made to intimate or suggest what you should find to be the facts or that I believe or disbelieve any witness.

If anything I have done or said has to so indicate [sic], you will disregard it and form your own conclusion.” Further: “Do not conclude that because an instruction is given I am expressing any opinion as to the facts.” Finally, Juan Williams was more seriously impeached by the testimony of Officer Robert Sayers, who testified that when he interviewed Williams the night of the murder, Williams reported seeing two suspects run up to the victim’s truck. This was the essence of the impeachment value provided by Broderick Fields’s statements to Detective Esquivel.

Any irregularity in the trial court’s limiting instruction was thus harmless. 3. Hearsay Statements by Mark Bender Defendant next contends the trial court violated his constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and analogous state constitutional provisions by admitting Julie Bender’s testimony that she heard her brother-in-law, Mark Bender, implicate defendant in the murder. As we explain, the trial court properly admitted the evidence under the spontaneous utterance exception to the hearsay rule.

At the time of the crime, Julie Bender was married to Perry Bender. She testified that one night she saw defendant in a red pickup truck. Around midnight that same night, Mark Bender, her brother-in-law, came into her house. Mark was upset and started crying. He shook his head back and forth, and his body was shaking. He then said: “I know he shot her. I know she is hurt bad.” When asked to whom he was referring, Mark replied, “Bam.” “Bam” is defendant’s nickname. Just before Julie Bender testified on this point, defendant objected on hearsay grounds and the court held a lengthy hearing.

The court eventually overruled defendant’s hearsay objection, admitting the statement under the spontaneous utterance exception to the hearsay rule. Evidence Code

section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [][] (

a) Purports to narrate, describe, or explain

an act, condition, or event perceived by the declarant; and [f] (

b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” Defendant first contends the trial court abused its discretion in admitting the evidence because the declarant, Mark Bender, was no longer “under the stress of excitement caused by” witnessing defendant’s crime. Defendant also contends that admission was improper because the declarant did not purport to be “narrating], describing], or explaining]

an act, condition, or event [he] perceived.” Both of these arguments depend on a determination of preliminary facts by the trial court; such determinations will be upheld if supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236 [92 Cal.Rptr.2d 58, 991 P.2d 145].) “When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.] But as we emphasized in People v.

Washington, ‘Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.’ ” (People v. Poggi (1988) 45 Cal.3d 306, 319 [246 Cal.Rptr. 886, 753 P.2d 1082], quoting People v.

Washington (1969) 71 Cal.2d 1170, 1176 [81 Cal.Rptr. 5, 459 P.2d 259], italics added in Poggi.) The trial court noted the declarant, Mark Bender, was crying, shaking and visibly upset when he made the statement, explaining: “He is still reacting to the events himself by objective manifestation.” The court was well aware that the passage of time was relevant to the spontaneity of the statement, but nevertheless concluded the statement satisfied the statutory requirement of spontaneity. Substantial evidence supports the trial court’s ruling.

Although Mark Bender’s statement was made about two and one-half hours after the crime, that fact is not dispositive of the issue. (See People v. Raley (1992) 2 Cal.4th 870, 893-894 [8 Cal.Rptr.2d 678, 830 P.2d 712] [statement made 18 hours after event held spontaneous under Evid. Code, § 1240].) “The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker.

The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. . . . [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.” (People v. Farmer (1989) 47 Cal.3d 888, 903-904 [254 Cal.Rptr. 508, 765 P.2d 940], overruled on another point in People v.

Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396, 996 P.2d 46].) Here, the facts available to the trial court amply justify its conclusion that the declarant continued to labor mightily under the emotional influence of the disturbing events he perceived, so much so that he could not stop his body from shaking nor stem the flow of tears. We reach the same conclusion regarding defendant’s argument that the declarant did not purport to be describing an event he personally witnessed.

Evidence indicates Mark Bender was in the driver’s seat of the car directly behind the victim’s truck when defendant shot her. His view of the scene was as clear as any of the witnesses’, and he no doubt saw what other witnesses reported: Defendant went up to the driver’s side of the truck and pulled the victim out, her body hitting the street face first. Although Bender’s statement (“I know he shot her.

I know she is hurt bad”) does not unquestionably carry the inference that he spoke from personal knowledge of having actually seen defendant pull the trigger, neither does the statement purport to be a repetition of something Bender had heard from someone else. Although closer than the question of spontaneity, we conclude that, under the circumstances, there is substantial evidence to support the trial court’s decision that Bender purported to be describing events he had personally seen.

Defendant also contends the trial court’s ruling to admit the evidence violated his right to confrontation under the state and federal Constitutions because he was unable to cross-examine Mark Bender. Defendant’s claim is meritless: “The hearsay exception for spontaneous declarations is among those ‘firmly rooted’ exceptions that carry sufficient indicia of reliability to satisfy the Sixth Amendment’s confrontation clause. (White v. Illinois (1992) 502 U.S. 346, 355, fn. 8 [112 S.Ct. 736, 742, 116 L.Ed.2d 848] and accompanying text.)” (People v.

Dennis (1998) 17 Cal.4th 468, 529 [71 Cal.Rptr.2d 680, 950 P.2d 1035].) 4. Prohibiting Impeachment of P M. with a Pending Juvenile Criminal Case Defendant next contends the trial court prejudicially erred, and also violated a number of his rights under the state and federal Constitutions, by prohibiting him from questioning P. M., a prosecution witness, about charges pending in juvenile court accusing P. M. of rape. As we explain, the trial court did not abuse its discretion. a. Facts P.

M., 15 years old at the time of the crime, was by his own admission the fourth person in the car along with driver Mark Bender, defendant, and Broderick Fields. P. M. testified at the preliminary hearing on February 21 and 24, 1989, and stated he saw defendant shoot the victim, Christina Ramirez, the driver of the red truck. In March 1990, several months after he testified at defendant’s preliminary hearing, P. M. was charged in juvenile court with committing rape in January 1990, and that matter was still pending when defendant’s trial commenced on November 18, 1991.

The question arose at the beginning of defendant’s trial whether P. M. could be impeached on cross-examination by asking him whether he expected some benefit in his juvenile rape case as a result of his favorable testimony for the prosecution in defendant’s case. The prosecutor, Mr. Pacheco, explained: “The rape case came much later, and [P. M.] has an attorney on that matter, and that’s Mr. Bums, Michael Bums. I don’t know what the disposition of that case is and I have stayed away from that case in all particulars. It’s none of my business and I didn’t want to do anything for [the witness] on that case. Mr.

Bums has inquired about that and I told him I’m not doing anything about it.” He then elaborated: “I have deliberately not done anything for [P. M.] on that rape case. I was asked by Mr. Bums to do something for Mr. [M.] in some way, and I explained to Mr. Bums that if I did something for [him], then that certainly would be admissible on cross-examination of [P.

M.], which would then allow counsel to get into his pending rape charge. [][] If I didn’t do something for [the witness] and he took that as an offense against himself and refused to testify, then, fine, he is unavailable as a witness and I have the opportunity to use his prior testimony. [][] So I don’t lose anything by not doing anything for [P. M.]. And that was the theory that I went through, or the thought process I went through, and nothing has been done for [the witness] in regard to this particular testimony. Nothing has been promised to [P. M.]. I haven’t told Mr.

Bums I would give him anything and I haven’t told [the witness] that either. In fact, I’ve steadfastly gotten away from that, or stayed away from it.” Defense counsel accepted the prosecutor’s assertions, but expressed concern that P. M. might subjectively believe he would benefit in his rape case if he cooperated and testified against defendant. In addition, counsel wondered whether P. M.’s attorney, Mr. Bums, his attorney at the preliminary hearing, Mr. Lomazow, or the prosecutor in the rape case, Mr. Hernandez, had promised P. M. anything.

The trial court seemed disinclined to order those attorneys into a hearing, so defense counsel proposed a compromise: They would telephone Bums, Lomazow and Prosecutor Hernandez and attempt to discern whether any promises had been made. The court was amenable to that proposal, saying: “As I say, I’m not saying I wouldn’t [hold a hearing]. And it may be appropriate.” Accordingly, the matter was deferred. The parties renewed the issue later in the trial. Before the prosecution called P. M. to the stand, his attorney, Mr. Bums, appeared and, out of the jury’s presence, affirmed that “no offers have been made to [P.

M.] . . . with regard to his pending case in juvenile court.” Bums explained he had not formally requested any continuances, but had informally waived pretrial proceedings, and that although the 18 months the case had been pending was unusual, good cause had been shown for the continuances. For example, P. M. failed to appear “on at least four occasions.” Bums asserted that if he thought it would have a positive effect on his client’s disposition, he would bring P. M.’s cooperation in defendant’s case to the attention of the juvenile court.

He affirmed he would do anything in his power to see that his client served the least amount of time. P. M. then testified out of the jury’s presence. He confirmed that no one told him his testimony against defendant would benefit him in his own rape case. Similarly, he did not think he would suffer any detriment if he declined to testify against defendant. When asked on cross-examination whether he expected to get a benefit from testifying, he replied in the negative. The trial court eventually ruled that “the nature of the pending proceedings against [P. M.] are not relevant to cross-examination on credibility.

I will not preclude . . . defense counsel from asking [him] . . . whether he expects any benefit from his testifying here today, whether he expects any benefit from the People in any respect, if they wish to ask that question.

They’re not obligated to. [][] But in terms of getting into the fact that there’s a juvenile pending proceeding against him and the nature of the charges and that, I think the probative value on credibility is rather minimal and it’s greatly outweighed by possible prejudice in this case to the People, undue prejudice to the People.” The court also noted its “greatest concern” was the “consumption of time” in proving whether P. M. was correctly charged with rape. The trial court specifically cited Evidence Code

section 352 as a basis for its decision. P. M. eventually testified before the jury that he saw defendant shoot through the window of the truck, pull the victim out, get in and drive away in the track. b. Discussion Defendant contends he was denied his constitutional right to cross-examine P. M. by the trial court’s ruling prohibiting him from raising the pending rape charges as evidence of the witness’s motive for testifying.

As a general matter, a defendant is entitled to explore whether a witness has been offered any inducements or expects any benefits for his or her testimony, as such evidence is suggestive of bias. (People v. Duran (1976) 16 Cal.3d 282, 294 [127 Cal.Rptr. 618, 545 P.2d 1322]; Evid. Code, § 780, subd. (f) [“the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including ... [f] ... [f] (

f) The existence or nonexistence of a bias, interest, or other motive”].) Contrary to defendant’s assertion, however, his right to cross-examination is not a matter of “absolute right.” Although we have said that “[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude” (Curry v. Superior Court (1970) 2 Cal.3d 707, 715 [87 Cal.Rptr. 361, 470 P.2d 345]), such latitude does not “prevent the trial court from imposing reasonable limits on defense counsel’s inquiry based on concerns about harassment, confusion of the issues, or relevance” (People v.

Box (2000) 23 Cal.4th 1153, 1203 [99 Cal.Rptr.2d 69, 5 P.3d 130]; see Delaware v. Van Arsdall, supra, 475 U.S. at p. 679). Moreover, reliance on Evidence Code

section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant’s constitutional rights to confrontation and cross-examination. (See generally People v. Ramos (1997) 15 Cal.4th 1133, 1166 [64 Cal.Rptr.2d 892, 938 P.2d 950].) The trial court held a hearing on the question whether promises had been made to P. M. Prosecutor Pacheco persuasively denied any such promises. The witness’s attorney, Mr. Burns, also denied anyone had made such promises. P.

M. himself denied the existence of such promises and also denied entertaining the subjective belief that he would enjoy any benefits. The decision on admissibility had been deferred to allow defense counsel time to inquire of the prosecutor in the rape case about any promises of leniency, but defense counsel produced no such evidence at the renewed hearing. No doubt the trial court was also aware that P. M. had testified against defendant at the preliminary hearing, before P. M. had allegedly even committed the rape.

At that hearing, he would have had no incentive to seek a benefit for a case that did not yet exist. Under the circumstances, we find the trial court did not abuse its discretion in concluding that, under Evidence Code

section 352, any slight impeachment effect of the remote possibility the witness was testifying in hopes of leniency was outweighed by the undue consumption of time such questioning would entail.

This routine application of state evidentiary law does not implicate defendant’s constitutional rights. “[U]nless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ (Van Arsdall, supra, 475 U.S. at p. 680 [106 S.Ct. at p. 1436]), the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.” (People v.

Frye (1998) 18 Cal.4th 894, 946 [77 Cal.Rptr.2d 25, 959 P.2d 183].) Even were we to assume the trial court erred, we find any error was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684 [applying the reasonable doubt standard]; People v. Price (1991) 1 Cal.4th 324, 423 [3 Cal.Rptr.2d 106, 821 P.2d 610] [same].) P. M.’s testimony was largely consistent with that of other witnesses, and defendant’s guilt was also supported by evidence of his involvement with the stolen truck, the attempt to remove the locked rims, and his admissions to other persons.

For example, he told a group of people how he “smoked that bitch,” shot through the truck window, pulled a woman out and threw her to the ground, and then drove off in her truck. Under the circumstances, we find any error in excluding evidence of P. M.’s rape charges harmless beyond a reasonable doubt. 5. Evidence of Gang Affiliation Andrew White testified at defendant’s preliminary hearing and claimed he was present in front of a market when defendant admitted he “smoked that bitch” for her truck.

Further, according to White, defendant “said that he put this on Fruit Town, that he was gonna put this on Fruit Town, Blood . .'. .” He explained that Fruit Town was the name of defendant’s gang and that by saying he was going to “put this on Fruit Town,” defendant was swearing an oath of similar solemnity to having sworn on the memory of his mother. Before trial, defendant sought to exclude any reference before the jury to Fruit Town or to his taking an oath on his gang.

The trial court made a tentative ruling finding the evidence admissible, except for the reference to the notorious street gang, the Bloods, which White had mentioned at the preliminary hearing. In his opening statement, the prosecutor stated that defendant told witnesses he had “smoked the bitch” and swore to the truth of his assertion by invoking Fruit Town, his gang.

Defendant contends the trial court’s failure to limit the prosecutor’s use of this evidence violated his constitutional rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, as well as analogous state constitutional guarantees. We reject the constitutional claims at the threshold, for we find defendant failed to preserve these issues for appeal by failing to object on the state and federal constitutional grounds now asserted. Setting aside the constitutional claims, we also understand defendant to contend that the trial court erred under Evidence Code

section 352 by ruling the evidence was admissible. Although defendant raised this issue in limine, respondent claims defendant failed to preserve this claim for appeal because he did not renew his evidentiary objection at trial. The general rule is that “when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal” (People v.

Jennings (1988) 46 Cal.3d 963, 975, fn. 3 [251 Cal.Rptr. 278, 760 P.2d 475]), although a sufficiently definite and express ruling on a motion in limine may also serve to preserve a claim (People v. Ramos, supra, 15 Cal.4th at p. 1171). We need not resolve the point, for we find respondent’s claim unfounded.

Following the trial court’s in limine ruling, which it expressly said was tentative, defense counsel asked if “the Court could reconsider [later in the trial] whether the testimony is so inflamed at that point that this [evidence of defendant’s gang] is simply cumulative and not of any additional probative value in light of the prejudice, I’d ask the Court to consider it at that time.” The trial court replied: “I would do so when you make your objection because we will have heard the evidence in the actual trial setting and we’ll be better able to evaluate the probative value and effect on the jury at that time than now.

I agree.” Just before calling Andrew White to the stand, defendant renewed his objection, which, after some discussion, the trial court again denied. We find defendant adequately preserved the Evidence Code

section 352 claim for appeal. Turning to the merits, we conclude the trial court did not abuse its discretion in admitting the Fruit Town evidence. (People v. Gurule (2002) 28 Cal.4th 557, 654-655 [123 Cal.Rptr.2d 345, 51 P.3d 224] [alleged violations of Evid. Code, § 352 tested by abuse of discretion standard].) “We have recognized that admission of evidence of a criminal defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged.” (People v.

Williams (1997) 16 Cal.4th 153, 193 [66 Cal.Rptr.2d 123, 940 P.2d 710].) Here, the risk was minimal. The evidence of defendant’s gang membership was not extensive, and the trial court took pains to exclude any reference to the Bloods, which might well have been more prejudicial and served little purpose. Admission of defendant’s Fruit Town reference, on the other hand, was very probative, serving to assist the jury in determining whether defendant’s statement that he shot the victim was mere braggadocio or a true statement of fact.

By swearing to its truth on his gang, defendant himself distinguished his statement from mere bravado. The trial court thus did not abuse its discretion in admitting the statement over defendant’s Evidence Code

section 352 objection. 6. Evidence of Defendant’s Nickname Defendant’s nickname was Bam Bam or simply Bam. He contends the trial court prejudicially erred by permitting the prosecutor to elicit and use this nickname. We disagree. Defense counsel moved in limine to prevent the prosecutor from referring to, or eliciting from witnesses, that defendant’s nickname was Bam or Bam Bam. The apparent basis of the objection was both Evidence Code

section 352 and relevance. The prosecutor protested, arguing that some of the witnesses knew defendant only by his nickname. The trial court observed the nickname “has some negative connotations. ‘Bam’ might have a connotation associated with weapons.

When a gun is fired it goes—some people describe it as going ‘bam.’ ” After further argument, the trial court announced that “[b]asically I’m going to grant [the defense] request as to [the prosecutor] using that name, but I don’t know whether it’s going to be possible to completely instruct witnesses who may only know him as I heard Bam say this or Bam did that and say and describe [defendant] as that person.” (Evidence adduced later, at the penalty phase, established that defendant’s nickname was bestowed during his childhood and was a reference to the Flintstones cartoon character of the same name.) The parties continued to discuss the issue.

The prosecutor stated: “I can assure the Court that I won’t emphasize or even unduly emphasize his nickname at all, and I will try to avoid it as much as possible. But the problem is some of these witnesses may have to be impeached with their prior statements, and in their prior statements they refer to the individual who committed the crime as Bam. And if we don’t tell the jury the defendant is Bam, then the name Bam in the prior inconsistent statements means nothing.

The jury might even think they’re referring to somebody else.” The trial court agreed the prosecutor should not emphasize the nickname but also recognized that it may be impossible to sanitize the entire trial of defendant’s nickname.

It instructed the prosecutor “not to use the word ‘Bam’ in framing a question unless it’s necessary ... to elicit a specific statement from a witness, a prior inconsistent statement or other statement that they’re seeking to elicit.” Recognizing that a witness may blurt out the nickname, the trial court informed the parties that “if it comes out inappropriately and there’s a motion to strike, I’ll strike it.” The court also suggested that if the prosecutor asked a witness about the nickname for no apparent reason, it would sustain an objection under Evidence Code

section 352. The prosecutor revisited the topic later in the trial and the parties discussed it again. The trial court reiterated its ruling that the prosecutor should not emphasize the nickname, but that if using the nickname is “the only way a question can be asked,” it would be permitted. Thereafter, when questioning witness Timothy Gardner, the prosecutor initially referred to defendant in neutral terms. The following colloquy then occurred: “Q. [by the prosecutor] Okay. And what did you see when you walked up to the fence? “A. [by witness Gardner] I seen Bam in the truck. “Q. You said Bam? “A. Yeah.

I seen Bam in the truck. “Q. Is that the defendant? “A. Yeah. “Q. Is that his nickname or something? “A. Yeah. That’s what I knew him as until everything happened.” The defense made no objection. In several subsequent instances, a witness used defendant’s nickname without any encouragement by the prosecutor. In these instances, the prosecutor merely clarified that the person known to the witness as Bam or Bam Bam was defendant. Two instances did not follow this pattern.

In questioning witness Kevin Davis, the prosecutor asked: “[D]o you know a person by the name of Andrew Lament Brown or BamT (Italics added.) The witness replied in the affirmative, and the defense made no objection. Finally, in questioning witness Manny Kelly, the following occurred: “Q. [the prosecutor] Did you know a person by the name of Bam Bam? “A. [witness Kelly] No, I didn’t. “Q. Okay. Did you meet Bam Bam at some point? “A. I had never met him before. “Q. Did you see him at some point? “A. Well, I saw a side view of him. That’s the first—the most I ever seen of him. “Q.

Do you see Bam Bam here today here in Court? “A. That would have to be him. I just seen a side view just for a minute of him. I didn’t see his face or anything. “Q. This person Bam Bam, you point to the defendant. Is this Bam Bam or not? “A. I couldn’t say it was. It’s just a side view. I just saw like his cheek, you know.” There was no defense objection. Respondent contends at the threshold that defendant forfeited this issue for appeal by failing to object each time a prosecution witness used the nickname, or when the prosecutor used the nickname.

Although a defendant’s motion in limine would satisfy the requirement of an objection if the court’s ruling were sufficiently clear and express (People v. Morris (1991) 53 Cal.3d 152, 189-190 [279 Cal.Rptr. 720, 807 P.2d 949], overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [38 Cal.Rptr.2d 394, 889 P.2d 588]), the trial court’s ruling on this subject lacked clarity. The court at first stated it was granting the defense motion, but it later backtracked, explaining that to prevent all the witnesses from blurting out defendant’s nickname might be impossible.

The court then cautioned the prosecutor to use discretion in questioning witnesses and invited defense counsel to object and move to strike in individual instances. We need not decide whether defendant adequately preserved this issue because, even assuming the issue is properly before us, we find the trial court did not abuse its discretion. (People v. Gurule, supra, 28 Cal.4th at pp. 654-655.) The court carefully weighed defendant’s concern over the potentially prejudicial effect of the nickname with the prosecutor’s assertion that many of the witnesses knew defendant only by that name.

The court then reasonably concluded that it would be impossible to sanitize the entire trial of any references to the nickname, but instructed the prosecution to minimize its use in order to reduce any prejudice. Our review of the record supports these decisions; sometimes reference to defendant’s nickname was necessary to render a witness’s testimony understandable, but there was no gratuitous use of, or reference to, the nickname. Defendant relies on two federal appellate court cases, but both are distinguishable. In United States v.

Grayson (2d Cir. 1948) 166 F.2d 863, the court merely noted that charging the defendant in the name of his alias was improper, there being no question of his identity, although the error “would not. . . even remotely tend to justify a reversal.” (Id. at p. 867.) Similarly, in United States v. Beedle (3d Cir. 1972) 463 F.2d 721, which defendant also cites, the court noted that use of the defendant’s alias “served no useful end and could only prejudice [the defendant].” (Id. at p. 725.) By contrast, several witnesses in the instant case knew defendant primarily or exclusively by his nickname.

Because defendant’s identity was at issue, the trial court did not err in cautioning the prosecutor not to emphasize the nickname, but acquiescing in the inevitability that it would come out before the jury. Even assuming error occurred, it was clearly harmless on the facts of this case. Except for the questioning of witness Manny Kelly, the prosecutor did nothing to elicit defendant’s nickname. Indeed, the nickname came out in defense counsel’s cross-examination of witnesses as well. These instances were brief, mild and factual and could not have been prejudicial.

Although the prosecutor’s questioning of Kelly was different because he used the nickname several times in succession in his questioning, the references came in only after numerous witnesses had referred to defendant as Bam, and they could not have prejudiced defendant. We conclude that, even assuming the trial court abused its discretion, defendant would not have achieved a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) 7.

Alleged Prosecutorial Misconduct: Arguing Future Dangerousness, Alleged Griffin Error In his guilt phase closing argument, Prosecutor Pacheco made the following comments: “Ask yourself what exactly [defense counsel] are . . . saying in their closing argument. What are they telling you? Did they tell you he didn’t do it? No, they didn’t tell you that. They told you basically [the evidence does not show guilt] beyond a reasonable doubt, be afraid, be fearful beyond a reasonable doubt. Well, [the applicable standard is] not beyond any doubt. The judge is going to tell you that.

Remember, it’s not possible to be perfect. If you apply a perfect standard to imperfect evidence, everybody is going to be acquitted. No one ever will be convicted. This man will walk free. This man will be out there in the streets with you and I.” Defendant objected to this argument, asserting the argument was “improper” and asked that the jury be admonished. The trial court did not make an express ruling, merely stating: “I think counsel should argue the evidence rather than the consequences of the jury’s decision. Let’s stick with the evidence.” The prosecutor then continued: “If he wasn’t there, where was he?

Everyone else says he was there. Where was he? No alibi witness took the stand and said he was with me that night watching T.V. You didn’t hear any of that, did you? All of the evidence points to one man. One man only. The defendant. Don’t be afraid to convict him. You know he did it. We all know that he did it. It’s up to you.” The prosecutor ended his argument shortly thereafter.

Following the close of argument, defense counsel reiterated their objection to the prosecutor’s comment that an acquittal would lead to defendant “being out in the street with the jury.” The prosecutor informed the court that, for his argument, he was relying on People v. Hughey (1987) 194 Cal.App.3d 1383 [240 Cal.Rptr. 269]. Defense counsel then moved for a mistrial or, in the alternative, to have the jury specifically admonished that the prosecutor’s comments on this topic were “improper” and that the jury should disregard them.

Counsel also argued that “the jury is not to decide this case either on public passion or any concern for the consequences of the decision, strictly on the facts.” The trial court denied the motion for mistrial, explaining: “There is no reference to committing other crimes. The District Attorney is arguing the evidence and the effects of the evidence and the fact that the evidence is not perfect; and if it were, if this jury requires perfect evidence, then [pjeople would be acquitted [in] every case that came in. I think that’s a fair comment.

As to the state of the evidence and whether it has to be perfect or just beyond a reasonable doubt[, the court will define those terms in the instructions].” The court further explained: “I do not find that the statements were misconduct. I did admonish the jury that they will decide the case on the evidence. I think that’s sufficient.” Defendant claims five separate errors arose from the portion of the prosecutor’s argument quoted above. He claims the prosecutor improperly: (

i) argued defendant would pose a danger in the future; (ii) appealed to the passions and sympathy of the jury; (iii) invited the jury to rely on speculative matters; (iv) implied he knew facts not in evidence; and (

v) commented on defendant’s failure to testify, in violation of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229] (Griffin). To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. (People v.

Hill (1998) 17 Cal.4th 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d 673] [criminal defendant may not complain on appeal of prosecutorial misconduct unless he objected “on the same ground” at trial].) As we explained in the analogous situation of a civil case in which it was alleged that one attorney made prejudicial comments in closing argument: “The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial. ...

In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice.” (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610 [39 Cal.Rptr. 721, 394 P.2d 561].) Failure to make a specific and timely objection and request that the jury be admonished forfeits the issue for appeal unless such an objection would have been futile. (Hill, supra, at p. 820.) (

i) Defendant first contends the prosecutor committed misconduct by urging the jury to consider his future dangerousness. This claim was unquestionably preserved because defense counsel complained of Pacheco’s comment that an acquittal would lead to defendant “being out in the street with the jury.” However, we agree with the trial court that there was no misconduct. The prosecutor reasonably relied on People v.

Hughey, supra, 194 Cal.App.3d 1383, in which the Court of Appeal, in rejecting the defendant’s claim of prosecutorial misconduct, stated that “[suggesting that a defendant will commit a criminal act in the future is not an inappropriate comment when there is sufficient evidence in the record to support the statement.” (Id. at p. 1396.) In light of the unprovoked and vicious attack defendant perpetrated, there was sufficient evidence to support the prosecutor’s argument.

Moreover, even were the comment improper, it could not have prejudiced defendant. “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v.

Frye, supra, 18 Cal.4th at p. 970.) In this case, the remarks were brief and fleeting, asserting nothing the evidence did not already suggest: defendant posed a danger to people in the community. Any misconduct was thus harmless. (ii) Defense counsel made but passing mention of defendant’s second claim, that the prosecutor improperly appealed to the jurors’ passions and sympathy. Assuming this ground was preserved for appeal, we find no misconduct.

The prosecutor’s argument, while forceful, did not clearly appeal to the jurors’ passions and prejudices. (iii) & (iv) Defense counsel nowhere mentioned that one basis of their objection to the prosecutor’s argument was that

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