THE PEOPLE, Plaintiff and Respondent, v. STANLEY BERNARD DAVIS, Defendant and Appellant, 36 Cal. 4th 510

Opinion KENNARD, J. A jury convicted defendant Stanley Bernard Davis of the first degree murders of Michelle Boyd and Brian Harris. (Pen. Code, § 187; further undesignated statutory references are to the Penal Code.) As to each murder, the jury found true the special circumstance allegations of murder during the commission of a robbery and murder during the commission of kidnapping for robbery. (§ 190.2, former subd. (a)(17)(i) & (ii), as added by initiative, Prop. 7, § 4 at the Nov. 7, 1978 Gen.

Elec.) The jury also found true a special circumstance allegation of multiple murder. (§ 190.2, former subd. (a)(3).) The jury further found defendant guilty of the robbery (§ 211) and kidnapping for robbery (§ 209, subd. (b)) of Boyd and Harris, grand theft auto (§ 487, former subd. (3)) and arson of Harris’s automobile (§ 451, subd. (d)) all committed in 1985, and the 1984 robbery (§ 211) and kidnapping for robbery (§ 209, subd. (b)) of David Kingsmill.

As to the murders, robberies, and kidnappings of Boyd and Harris, and the theft of Harris’s car, the jury found for each offense that defendant was armed with a firearm (§ 12022, subd. (a)) and that he personally used a firearm (§ 12022.5, subd. (a)). With respect to the robbery and kidnapping of Kingsmill, the jury found for each offense that a principal was armed with a firearm. (§ 12022, subd. (a).) At the penalty phase, the jury returned verdicts of death for the Boyd and Harris murders.

The trial court denied defendant’s automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed death sentences for those counts. The court imposed terms of imprisonment for the other counts, but it stayed them pending imposition of the death penalty. This appeal is automatic. (§ 1239, subd. (b).) We vacate the conviction for the robbery of Boyd, but otherwise affirm the judgment. I. Factual Background A jury convicted defendant of the 1985 kidnapping, robbery, and first degree murders of college students Michelle Boyd and Brian Harris.

Three other men—DeAndre Brown, Damon Redmond and Donald Bennett—were involved in the crimes. Brown was the prosecution’s primary witness; he admitted being present at the murder scene and purchasing the murder weapon, an Uzi semiautomatic pistol. Brown testified that he, defendant, Redmond, and Bennett drove from South Central Los Angeles to Westwood, where they commandeered Harris’s car, with students Boyd and Harris inside, because they needed a car to carry out a planned robbery. Brown testified that after driving to an isolated location, defendant took Boyd and Harris out into a field and shot them.

The prosecution also introduced incriminating statements defendant made, which the police tape-recorded while defendant was in jail with Redmond and Bennett. A year before the Boyd and Harris murders, defendant kidnapped and robbed David Kingsmill, also in Westwood. A. Guilt Phase 1. Prosecution’s case a. Kingsmill kidnapping and robbery In 1984, David Kingsmill was a student at the University of California at Los Angeles, in Westwood.

On May 27, about 11:00 p.m., as Kingsmill was getting out of his new black Volkswagen Rabbit, he felt a gun at his neck and heard someone tell him to turn around and get back in the car. Kingsmill did so. Defendant and two other African-American men got in after him. One of the men told Kingsmill to drive where he was told. Ultimately, Kingsmill stopped somewhere on Sepulveda Boulevard and gave the three men his wallet, money, and credit cards. He then complied with their demand to get out of the car and take off his pants and underwear. The three men left, taking Kingsmill’s clothes.

Four days later, deputy sheriffs stopped defendant in South Central Los Angeles while he was driving with DeAndre Brown in a new black Volkswagen Rabbit. With respect to this incident, defendant pleaded guilty to one misdemeanor count of unlawfully taking a vehicle (Veh. Code, § 10851) for which he served a two-month jail sentence. b. Boyd and Harris murders Testifying under a grant of immunity, DeAndre Brown gave the following account of the murders. In September 1985, defendant was living with his friend Brian Wright at the house of Wright’s grandmother in South Central Los Angeles.

On September 26, defendant and Wright were arrested. Defendant was able to post bail but Wright was not. A few days later, defendant told Brown about a plan to drive to Barstow, San Bernardino County, and rob a liquor store to get money to post Wright’s bail. Brown agreed to take

part in the planned robbery. A few days later, on September 30, around 7:00 p.m., Brown and Damon Redmond met up with defendant and Donald Bennett, who was driving a truck. The four discussed the planned Barstow robbery. They decided to drive to Westwood to get a car because Bennett did not want to use his truck in the robbery. The group had with them a nine-millimeter Uzi semiautomatic pistol and a .38-caliber handgun. The four arrived in Westwood around 9:00 p.m. They split up and went looking for a car to steal.

Brown and Redmond saw a man and a woman in a beige or rust-colored Honda and told defendant about the car. Defendant and Redmond went to investigate. When they returned to Bennett’s truck, Redmond was driving the Honda, with defendant in the backseat. At Bennett’s instruction, Brown grabbed the Uzi, which was loaded, from the back of the truck. When Brown approached the Honda, he saw victim Michelle Boyd in the backseat next to defendant, with her head in his lap. Brown also got in the backseat. Bennett took the front passenger seat. Redmond drove a short distance, then stopped to let Bennett drive.

Bennett drove near a high school. It was around midnight and the area was “pitch black,” with no lights or houses around. Defendant signaled Bennett to stop the car. Defendant, Redmond, and Brown got out, taking Boyd with them. Brown handed defendant the Uzi. Brown saw defendant take Boyd out into a field but then lost sight of them. Brown then heard thumping from inside the Honda’s trunk and a voice yelling “let me out.” When defendant returned to the car, Redmond opened the trunk hood and Brian Harris emerged holding his hands over his eyes. Harris said he could not see and would not look.

Defendant, still holding the Uzi, told Harris, “I’m going to take you to your girl.” He and Redmond then walked Harris out into the field. Brown saw Redmond walking back toward the car and then saw a flash of light in the field. A second flash followed, after which defendant returned to the car. When Brown asked defendant what he had done, defendant said he had “killed ‘em“ because he did not want any witnesses. Defendant, Brown, Bennett, and Redmond then drove away, with Bennett at the wheel, planning to drive northeast from Los Angeles to Barstow to rob the liquor store. Brown fell asleep.

He awoke to defendant’s yelling at Bennett because they had ended up in Bakersfield, in Kem County, north of Los Angeles, about 130 miles from Barstow. Eventually the group drove to Barstow and arrived at the liquor store they planned to rob. Brown went in to check out the store, but came back and reported that there were people inside and it “wasn’t cool.” The four then headed back to Los Angeles, arriving about 6:00 or 7:00 a.m. on October 1. Brown got out at a bus stop a few miles from his home. He took the Uzi with him, hidden in a brown briefcase he had found in victim Harris’s car.

He stored the gun and the briefcase in his bedroom. Later that morning, Brown saw defendant, Redmond, and Bennett near their homes in South Central Los Angeles. Redmond had bums on his face and hands, received when he had poured gasoline on victim Harris’s Honda and lit it. Either Bennett or defendant handed Brown the .38-caliber handgun, which he left in Redmond’s house. Either Redmond or defendant gave Brown a wire ring. Redmond kept another ring, which looked like a high school class ring with a stone.

Brown still had the wire ring in his bedroom when he was arrested; later he gave it to his girlfriend. (Victim Boyd always wore a small gold twisted wire ring and a high school senior class ring; after the murders, there were no rings on her body.) c. The arrests and interrogations On October 1, 1985, about 8:30 a.m., James Shubsda arrived at the auto store where he worked in South Central Los Angeles. He noticed a brownish-colored Honda parked in the alley behind the store. About 15 minutes later, Shubsda heard an explosion. He ran into the alley, saw the Honda on fire, and called the fire department.

Arson investigator Derek Chew of the City of Los Angeles Fire Department examined the Honda and determined that someone had poured gasoline inside it and set it on fire. Victim Harris’s wallet was in the trunk of the car. The police found only one fingerprint on the car; it belonged to Redmond. The police looked up Redmond’s known associates and found, among others, Brown and defendant, whom they discovered had been involved in the 1984 kidnapping and robbery of college student David Kingsmill.

They determined that Kingsmill’s car had been taken only a few blocks from where college students Boyd and Harris were last seen in Westwood, and that Brown, Redmond, and defendant all lived within 12 blocks of where Harris’s Honda had been abandoned in South Central Los Angeles. Brown, Redmond, and defendant thus became suspects in the disappearance of Boyd and Harris. Officer David Evans of the Los Angeles Police Department was the investigating officer on the Boyd and Harris murders. He arrested Redmond around 6:00 a.m. on Sunday, October 6, 1985. Redmond had bums on his face and hands.

Other officers arrested Brown about the same time. A search of Brown’s bedroom turned up a brown briefcase with an Uzi and a loaded magazine inside. Later that day, Officer Evans and Detective Richard DeAnda questioned Brown and Redmond at the West Los Angeles police station. Brown admitted involvement in the kidnappings of Boyd and Harris and also implicated defendant, Redmond, and Bennett. Brown said that defendant had shot and killed both victims. Brown then led the police to the bodies of Harris and Boyd, in a field near a high school on Mulholland Drive. Searches of the field turned up two shell casings.

Still later that Sunday, October 6, 1985, Officer Evans and Detective DeAnda questioned Redmond, who admitted being present at the murder scene. That afternoon, defendant surrendered and was taken to the West Los Angeles station. Bennett was arrested on October 8. During questioning, he admitted being present at the murder scene. d.

The jailhouse conversations At trial, the prosecution introduced excerpts of incriminating statements by defendant that police had tape-recorded during conversations that defendant had with Redmond and Bennett while the three were being held at the West Los Angeles station before they were charged. e. Other trial evidence The parties stipulated that both Harris and Boyd died of single gunshot wounds to the head. A pathologist from the Los Angeles County Chief Medical Examiner Coroner’s Office recovered a bullet from Harris’s head.

A firearms expert test-fired the Uzi recovered from Brown’s bedroom and compared the resulting bullets and shell casings with the bullet removed from Harris’s head and the casings found at the murder scene. In his opinion, the casings and bullets were fired from that Uzi. 2. Defense case The defense tried to undermine Brown’s credibility and to inculpate him as the shooter of Boyd and Harris. Los Angeles Police Department Detective Hugh Wilton, whom the defense called as a witness, testified that he had found the briefcase containing the Uzi and a loaded magazine in Brown’s bedroom.

To discredit Brown’s testimony that the crime scene was “pitch black,” two witnesses testified that nearby streetlights were working on the night of the murders, and the parties stipulated that the moon was nearly full that night. B. Penalty Phase 1. Prosecution’s evidence in aggravation Much of the prosecution’s aggravating evidence was presented by stipulation of the parties, including these facts: Defendant was bom on March 19, 1962, making Mm 23 years old at the time of the murders in 1985.

In 1980, he pled guilty to unrelated felony charges of grand theft auto and assault with a deadly weapon in which the victim sustained tMee stab wounds. As a result of those convictions, defendant was incarcerated for most of the period between May 29, 1980, and April 10, 1983. When defendant committed the assault, he was on probation for the grand theft auto conviction, and at the time of the Boyd and Harris murders in this case, he was on probation based on his unlawfully taking the car of college student Kingsmill in 1984.

In 1981, when defendant was a ward at the California Youth Authority at CMno, he threw hot water on a counselor. In 1982, when defendant was an inmate at Soledad State Prison, he pushed a correctional officer through a doorway. 2. Defense evidence in mitigation Several friends and family members testified about defendant’s difficult childhood and adolescence. Shortly after defendant’s birth, his mother, Della Moore, relinquished Mm to another woman, Ruby Orr. When Orr later married Joe Davis, the two raised defendant as their own son together with their two younger sons, Delano and Antoine.

Orr abused defendant both physically and psychologically. She hit defendant with her fist and various items including switches, paddles, ironing cords, and a baseball bat. She verbally denigrated defendant and forced him to take care of the younger brothers, whom she favored. Orr and Davis had a violent relationship. Orr once shot Davis and once stabbed him. When defendant was a teenager, Davis and Orr divorced. Orr then held late night gambling parties in her house. When defendant was 18 or 19 years old, he learned that Orr was not his birth mother.

Clinical Psychologist Adrienne Davis, not related to defendant, testified about her psychological evaluation of defendant. Defendant scored in the borderline range on intelligence tests, between low average intellectual function and mild mental retardation. He scored at the fourth grade level in reading and math. Personality tests indicated that defendant had emotional and psychological problems, particularly with trusting and relating to other people, consistent with his history of physical and emotional abuse and exposure to family violence.

On neuropsychological tests, defendant had difficulty with certain tasks, including problem solving. Davis described defendant generally as feeling isolated, inadequate, alienated, angry, frustrated, and confused. As the result of being incarcerated for most of his adult life, defendant lacked the necessary skills to cope with life outside of prison. He probably would function better in a closed environment. 3. Prosecution’s rebuttal Defendant’s younger brother, Antoine Davis, who was 17 years old at the time of trial, denied that Orr had ever hit defendant with a baseball bat. II. Discussion A.

Jailhouse Taping Defendant contends that the tape-recording by the police of his conversations with Bennett and Redmond while the three were housed near each other in holding cells at the West Los Angeles police station violated his rights under the Fourth Amendment to the federal Constitution requiring reversal. We disagree. 1. Facts Before trial, defendant moved to suppress the tape recordings and transcripts of his jailhouse conversations with Redmond and Bennett, citing the Fourth Amendment to the federal Constitution and former

section 2600 as construed in this court’s decision in DeLancie v. Superior Court (1982) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142] (DeLancie). At the hearing on the suppression motion, Detective DeAnda testified that after the police arrested and interviewed defendant, Redmond and Bennett, the three were placed in separate but adjacent cells in an isolated holding area for felony suspects in the West Los Angeles police station. A solid wall and a steel door separated defendant, Redmond and Bennett from the rest of the facility.

Detective DeAnda testified that he had monitored and taped the three suspects’ jailhouse conversations to ascertain whether they were threatening the safety of DeAndre Brown, who was cooperating with the police investigation. Former Deputy District Attorney Richard Neidorf (who, at the time of the hearing, was a Los Angeles Municipal Court judge) gave a different account of the reason for the taping. The parties agreed to the admission of Neidorf’s declaration as his stipulated testimony. It states: “Before any arrests were made[,] I was at the West L.A. police station preparing arrest and search warrants.

I arrived at approximately 9 p.m. on a Saturday and stayed past midnight. H] I suggested to Los Angeles Police Department officers, a lieutenant for sure and possibly Detective DeAnda to eavesdrop the jail, after the suspects were apprehended. I told them not to put any informants in the cell nor to put any undercover police officers in the cell. Just to let the defendants freely talk among themselves. [][] When I suggested the eavesdropping I told tihe officers the reason was to gather information. My concern in gathering information was to decide which of the perpetrators to seek death against in that Carlos v.

Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862],[] was the law at the time and who [szc] to charge 12022.5, personal use of a firearm and exculpatory evidence regarding . . . Beamon-type [People v. Beamon (1973) 8 Cal.3d 625 [105 Cal.Rptr. 681, 504 P.2d 905]] evidence or any evidence regarding factual innocence. [][] At this time the warrants had not been signed yet and therefore no suspects had been arrested.” The trial court denied defendant’s suppression motion.

It found that the taping had a dual purpose: first, to gather evidence against the defendants, and second, to obtain information regarding the safety of Brown. The trial court explained: “A conscious decision was reached by the officer to tape-record and monitor the conversations of these defendants. And it was based on a reasonable suspicion that there might be conversations pertaining to the crime for which they had been arrested. [][] And let’s face it.

It’s clear to me that the original purpose in deciding to tape-record or monitor was to secure evidence to prosecute ....[][] And, finally, I’m forced to the conclusion or come to the conclusion that... the reasonable protection of the public was involved ultimately before the taping began. [][] Before this taping began, a secondary consideration arose in the mind of the officer, and that was the protection of Brown. ...[][] And when it comes to protecting Brown—and I think it was very reasonable to expect that Brown would be in danger here—there’s nothing better than ¿lowing what these people are planning. . . . [f] There was bona fide interest in information pertaining to the safety of Brown prior to the commencement of the taping.” 2.

Discussion In several cases we have rejected defendants’ Fourth Amendment challenges to the admission of evidence obtained by tape-recording conversations in jail. (See People v. Riel (2000) 22 Cal.4th 1153, 1183-1184 [96 Cal.Rptr.2d 1, 998 P.2d 969] [conversation between a defendant and family members in a jail visiting room]; People v. Hines (1997) 15 Cal.4th 997, 1043 [64 Cal.Rptr.2d 594, 938 P.2d 388] [conversation between a defendant and another suspect in a jail holding cell before they were charged]; Donaldson v.

Superior Court (1983) 35 Cal.3d 24, 28-30 [196 Cal.Rptr. 704, 672 P.2d 110] [conversation between a defendant and his brother in a police station interview room].) Those cases relied on Lanza v.

New York (1962) 370 U.S. 139 [8 L.Ed.2d 384, 82 S.Ct. 1218], in which the United States Supreme Court concluded that Fourth Amendment protections do not apply inside a jail because a jail “shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room” and “[i]n prison, official surveillance has traditionally been the order of the day.” (Lanza, supra, 370 U.S. at p. 143.) Defendant contends that Lanza was long ago superseded by other United States Supreme Court decisions. He notes that a few years after Lanza, the high court held in Katz v.

United States (1967) 389 U.S. 347, 351 [19 L.Ed.2d 576, 88 S.Ct. 507] (Katz), that the Fourth Amendment protects “people, not places,” and thus he asserts that the location of a tape-recorded conversation (whether in a jail cell or not) should not be dispositive of whether it enjoys Fourth Amendment protection.

Rather, according to defendant, the appropriate test is the one set out in Justice Harlan’s concurring opinion in Katz, asking whether the subject of the taping had an actual, subjective expectation of privacy that society recognizes as reasonable. (Katz, supra, at p. 361 (conc. opn. of Harlan, J.).) Defendant notes that the high court applied that test in a jail context in Bell v. Wolfish (1979) 441 U.S. 520 [60 L.Ed.2d 447, 99 S.Ct. 1861] (Bell). In Bell, the high court assumed, without deciding, that pretrial detainees retain an expectation of privacy, albeit a diminished one.

The court concluded, however, that cell searches did not violate the Fourth Amendment if they were reasonably related to legitimate institutional security needs. (Bell, supra, at pp. 556-557.) Five years after Bell, the high court decided Hudson v.

Palmer (1984) 468 U.S. 517 [82 L.Ed.2d 393, 104 S.Ct. 3194] (Hudson); it holds that convicted prisoners have no legitimate expectation of privacy in their cells, and thus no Fourth Amendment protection from cell searches. (Hudson, supra, at pp. 522-530.) Defendant here argues that under the reasoning of Bell and Hudson, persons who are in custody and have not yet been convicted have privacy interests that the Fourth Amendment protects from intrusion absent a legitimate institutional security interest.

According to defendant, he had an expectation of privacy that precluded recording his conversations for reasons other than jail security. He relies on the fact that at the time of the taping he had not been charged with any crime. He thus reasons that his expectation of privacy in the jail cell was at least equal to that of the pretrial detainees in Bell, supra, 441 U.S. at pages 556-557, and greater than that of the convicted prisoners in Hudson, supra, 468 U.S. at pages 522-530.

He further asserts that no legitimate security reasons existed here based on the stipulated testimony of former Deputy District Attorney Neidorf that he had ordered the taping “to gather information.” We are not persuaded. Preliminarily, we note that various federal and state appellate courts have disagreed with regard to whether the high court’s decision in Hudson that convicted prisoners lack any expectation of privacy in their cells applies with equal force to persons who are still facing trial. One line of cases, beginning with United States v.

Cohen (2d Cir. 1986) 796 F.2d 20, holds that persons being held before trial retain a limited expectation of privacy that protects them from searches conducted for other than legitimate security reasons. (See United States v. Friedman (2d Cir. 2002) 300 F.3d 111, 123; United States v. Willoughby (2d Cir. 1988) 860 F.2d 15, 20-22 [intercepted conversations admissible where taping was a justifiable security measure]; Cohen, supra, at p. 24 [warrantless cell search solely to obtain information for prosecution violated Fourth Amendment]; Rogers v. State (Fla. 2001) 783 So.2d 980, 990-992 [same]; McCoy v.

State (Fla.Dist.Ct.App. 1994) 639 So.2d 163, 167 [same]; State v. Henderson (1999) 271 Ga. 264 [517 S.E.2d 61, 62-64] [same]; Lowe v. State (1992) 203 Ga.App. 277 [416 S.E.2d 750, 752] [same]; State v. Neely (1990) 236 Neb. 527 [462 N.W.2d 105, 112] [Hudson inapplicable to search of pretrial detainee’s luggage held in jail’s locked inventory]; State v. Jackson (1999) 321 N.J. Super. 365 [729 A.2d 55, 63-65] [evidence suppressed where security concern was merely a pretext for an evidence-gathering search]; see also United States v.

Hearst (9th Cir. 1977) 563 F.2d 1331, 1345; see generally 4 LaFave, Search and Seizure (3d ed. 1996) § 10.9(d), pp. 754-755.) We cited Cohen in People v. Hardy (1992) 2 Cal.4th 86, 181 [5 Cal.Rptr.2d 796, 825 P.2d 781], in rejecting a claim that a jail cell search violated the detainee’s Sixth and Fourteenth Amendment rights. Another line of cases, however, construes Hudson as validating any jailhouse search, regardless of its purpose, and as applying to persons incarcerated before trial as well as to convicted prisoners. (See State v. Apelt (1993) 176 Ariz. 349 [861 P.2d 634, 649]; State v.

O'Rourke (2001) 2001 ME 163 [792 A.2d 262, 265-267]; People v. Phillips (1996) 219 Mich.App. 159 [555 N.W.2d 742, 743-744]; State v. Wiley (2002) 355 N.C. 592 [565 S.E.2d 22, 32-33]; State v. Martin (1988) 322 N.C. 229 [367 S.E.2d 618, 620-622] [Hudson’s reasoning equally applicable to pretrial detainees in jails]; Soria v. State (Tex.Crim.App. 1996) 933 S.W.2d 46, 60 [same]; see also People v. Von Villas (1993) 11 Cal.App.4th 175, 212-216 [15 Cal.Rptr.2d 112] [pretrial detainee had no expectation of privacy in conversation with wife in jail visiting room]; United States v.

Van Poyck (9th Cir. 1996) 77 F.3d 285, 290-291 [pretrial detainee had no expectation of privacy in phone calls from jail].) We agree with this latter line of cases that persons held pretrial in a jail—as defendant was when the police recorded his conversations with Redmond and Bennett—have no expectation of privacy for the following reasons. First, Hudson’s rationale, that jail security requires “close and continued surveillance of inmates and their cells” (Hudson, supra, 468 U.S. at p. 527), extends to anyone being held in a jail.

Indeed, in Bell the high court recognized that pretrial detainees pose similar—if not the same—security concerns as convicted prisoners. (See Bell, supra, 441 U.S. at pp. 546-547, fn. 28 [“[t]here is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates”].) As Justice O’Connor has suggested, it is “[t]he fact of arrest and incarceration [that] abates all legitimate Fourth Amendment privacy and possessory interests in personal effects [citations] and therefore all searches and seizures of the contents of an inmate’s cell are reasonable.” (Hudson, supra, 468 U.S. at p. 538 (conc. opn. of O’Connor, J.), italics added.) Second, Hudson applies to jailhouse searches regardless of the purpose of the search. (See Hudson, supra, 468 U.S. at pp. 529-530 [rejecting claim that search violated Fourth Amendment because it was designed solely to harass].) Third, although Hudson involved the physical search of a cell, its rationale extends as well to eavesdropping.

Lanza and Katz were eavesdropping cases, yet the United States Supreme Court drew on those cases in Hudson. (See Hudson, supra, 468 U.S. at p. 525 [applying Katz expectation of privacy test in cell search context]; see also Bell, supra, 441 U.S. at pp. 556-557 [citing Lanza in cell search context].) As a separate reason supporting his claim that the tape-recording violated his Fourth Amendment rights, defendant points out that it took place in 1985, when, he argues, California law provided persons incarcerated in this state with a reasonable expectation of privacy. Defendant relies on former

section 2600 as construed in this court’s 1982 decision in DeLancie, supra, 31 Cal.3d 865. Under former

section 2600, state prison inmates could “be deprived of such rights, and only such rights, as . . . necessary ... to provide for the reasonable security of the institution . . . and for the reasonable protection of the public.” (Stats. 1975, ch. 1175, § 3, p. 2897.) DeLancie held that former

section 2600 protected pretrial detainees as well as prison inmates and precluded the recording of a pretrial detainee’s conversations with visitors and other detainees for reasons other than jail security or protection of the public. (DeLancie, supra, 31 Cal.3d at p. 876.) Because former

section 2600 as construed in DeLancie was the controlling law when the officers recorded defendant’s conversations in jail, he asserts that he must have had an expectation of privacy in his jail cell that society was “prepared to recognize as reasonable.” (See People v. Ayala (2000) 23 Cal.4th 225, 255 [96 Cal.Rptr.2d 682, 1 P.3d 3] [reasonable expectation is one that has “ ‘ “a source outside of the Fourth Amendment” ’ ”].) We disagree.

We have already concluded that under Hudson, supra, 468 U.S. 517, pretrial detainees can have no legitimate expectation that their jailhouse conversations will not be monitored or recorded. DeLancie, which was decided before Hudson, distinguishes permissible searches from impermissible ones based on the purpose of the search: security searches are permissible, while investigatory searches are not. Hudson, however, does not recognize that distinction.

Rather, as we have explained, under Hudson the purpose of a search has no bearing on the question whether a legitimate expectation of privacy exists. (See Hudson, supra, 468 U.S. at pp. 529-530.) In other words, if a pretrial detainee can reasonably expect that his cell may be monitored or searched for security reasons, then he cannot reasonably expect any privacy. It is the fact that an intrusion may occur, not the reason for the intrusion, that vitiates the expectation of privacy.

Accordingly, although under DeLancie defendant reasonably could have expected that the police and prosecution would not violate state law by monitoring his conversations for investigatory reasons, that expectation was basically irrelevant to the Fourth Amendment question.

Moreover, even were we to conclude that defendant retained some legitimate expectation of privacy in jail that protected him from a warrantless tape-recording of his conversations absent a legitimate security interest, here, the officers conducted the tape-recording in part, as the trial court found, to further just such an interest—the protection of DeAndre Brown, who was providing evidence against defendant.

When considering a trial court’s denial of a suppression motion, “we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence.” (People v. Jenkins (2001) 22 Cal.4th 900, 969 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; see also People v. Alvarez (1996) 14 Cal.4th 155, 182 [58 Cal.Rptr.2d 385, 926 P.2d 365]; People v. Williams (1988) 45 Cal.3d 1268, 1301 [248 Cal.Rptr. 834, 756 P.2d 221].) We independently review the trial court’s application of the law to the facts. (People v. Jenkins, supra, at p. 969; People v.

Alvarez, supra, at p. 182.) Here, substantial evidence supports the trial court’s finding that a legitimate security interest—protecting Brown—justified the jailhouse recording. Detective DeAnda testified at defendant’s suppression hearing to the following facts: the purpose of the tape-recording was to determine whether defendant or his co-suspects were threatening Brown’s safety; Brown had told DeAnda that Brown feared for his safety because he saw defendant shoot the two victims; and Brown said that defendant was a member of the East Coast Crips gang.

Moreover, at the time of the taping, Brown was a potential prosecution witness against defendant in a capital murder case. It thus was reasonable for Detective DeAnda to believe that, even if Brown was jailed separately from defendant, defendant’s friends might retaliate against Brown for informing on defendant. DeAnda’s testimony amply supports the trial court’s conclusion that the police had a bona fide concern for Brown’s safety, which justified the taping. Defendant raises several other contentions.

For example, he argues that the safety concern expressed by the police was a pretext developed to justify an otherwise illegal taping; that Detective DeAnda’s subjective concern for Brown’s safety was insufficient to justify the tape-recording absent articulable facts providing a basis for such a concern; that the police helped to create the danger to Brown by revealing Brown’s cooperation to defendant and by housing Brown separately from defendant, Redmond, and Bennett; and that the taping was improper because it was not “routine.” We have examined each of these contentions and determined that none has merit. B.

Defendant’s Absence from Pretrial Hearing on Tape Excerpts Defendant contends that his right to due process under the federal Constitution, as well as his state constitutional and statutory rights, were violated when the trial court failed to ensure his presence at a May 16, 1989 pretrial hearing regarding admissibility of the jailhouse tape.

Although defense counsel had earlier indicated that defendant would be present at the hearing, counsel stated at the start of the hearing that defendant was aware of the purpose of the hearing but had decided to “waive his presence.” At the hearing, the trial court and counsel reviewed each of the 51 tape excerpts that the prosecution sought to have admitted into evidence, in order to reach an agreement as to the words being spoken so that a transcript of the tape could be prepared.

Defense counsel and the prosecutor then argued the admissibility of the excerpts, and the trial court ruled that 49 of the excerpts would be admitted. The taped excerpts were presented at trial together with the agreed-upon transcript of the conversations on the tape. Defendant now makes the following assertions: (1) his absence from the hearing violated his constitutional and statutory rights (see Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96 L.Ed.2d 631, 107 S.Ct. 2658]; Snyder v. Massachusetts (1934) 291 U.S. 97, 105-106 [78 L.Ed. 674, 54 S.Ct. 330]; People v.

Lucero (2000) 23 Cal.4th 692, 717 [97 Cal.Rptr.2d 871, 3 P.3d 248]; see also §§ 977, subd. (b)(1), 1043); (2) defense counsel’s purported waiver of defendant’s presence was ineffective; and (3) conducting the hearing in defendant’s absence resulted in the admission at trial of highly prejudicial portions of the jailhouse tape.

The Attorney General counters that defendant, through counsel, validly waived his federal constitutional right to presence at the hearing, and that although defendant’s purported waiver of his state statutory right to be present was ineffective, his presence was not statutorily required and any state law error was harmless. We conclude that this claim fails because defendant suffered no prejudice.

We have summarized the federal law governing a defendant’s presence at trial as follows; “ ‘A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution .... [Citations.] A defendant, however, “does not have a right to be present at every hearing held in the course of a trial.” [Citation.] A defendant’s presence is required if it “bears a reasonable and substantial relation to his full opportunity to defend against the charges.” [Citation.]’ ” (People v. Lucero, supra, 23 Cal.4th at pp. 716-717; see People v.

Waidla (2000) 22 Cal.4th 690, 742 [94 Cal.Rptr.2d 396, 996 P.2d 46].) The standard under sections 977 and 1043 is similar. “ ‘[T]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him .... [Citation.]’ [Citation.]” (People v. Ervin (2000) 22 Cal.4th 48, 74 [91 Cal.Rptr.2d 623, 990 P.2d 506]; People v.

Waidla, supra, 22 Cal.4th at p. 742.) Here, defendant had both a statutory and a constitutional right to be present at the May 16, 1989, hearing during which the contents of the jailhouse tape were discussed and agreed upon. Because defendant was personally present at the police station lockup when the tapes were made, he could have assisted his attorneys in deciphering the tape—both by identifying who was speaking in each passage, and by determining what was being said.

The tape, in turn, was the sole evidence that corroborated DeAndre Brown’s testimony that defendant was present during the kidnappings and robberies and personally shot both victims. Even the prosecutor agreed that defendant should be present at this hearing. Accordingly, defendant’s presence bore a reasonable and substantial relationship to his ability to defend the charges against him. Nor did defendant validly waive his right to be present under state or federal law.

Section 977, subdivision (b)(1), states that in felony prosecutions “the accused shall be present” at certain proceedings not relevant here, and “at all other proceedings unless he or she shall, with leave of court, execute in open court a written waiver of his or her right to be personally present, as provided by paragraph (2).” (Italics added.)

Section 977, subdivision (b)(2) further provides “[t]he accused may execute a written waiver of his or her right to be personally present, approved by his or her counsel, and the waiver shall be filed with the court.” Finally,

section 1043 provides that a felony defendant “shall be personally present at the trial” (id., subd. (a)), but that the trial may continue in the defendant’s absence if (1) the defendant persists in disruptive behavior after being warned (id., subd. (b)(1)); (2) the defendant in a noncapital case is voluntarily absent (id., subd. (b)(2)); or (3) the defendant waives his right to be present pursuant to

section 977 (§ 1043, subd. (d)). “[W]hen read together, sections 977 and 1043 permit a capital defendant to be absent from the courtroom only on two occasions: (1) when he has been removed by the court for disruptive behavior under

section 1043, subdivision (b)(1), and (2) when he voluntarily waives his rights pursuant to

section 977, subdivision (b)(1).” (People v. Jackson (1996) 13 Cal.4th 1164, 1210 [56 Cal.Rptr.2d 49, 920 P.2d 1254].) Here, there is no claim that defendant’s disruptive behavior allowed the court to conduct the May 16, 1989 hearing in his absence, and no evidence that defendant executed a written waiver of his presence at that hearing. Accordingly, the trial court erred under sections 977 and 1043 by conducting the proceeding in defendant’s absence. Similarly, there was no valid waiver of defendant’s constitutional right to presence.

As with other constitutional rights, a capital defendant may waive his right to presence at trial, as long as his waiver is voluntary, knowing and intelligent under the standard set forth in Johnson v. Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461, 58 S.Ct. 1019]. (See People v.

Robertson (1989) 48 Cal.3d 18, 62 [255 Cal.Rptr. 631, 767 P.2d 1109] [defendant’s written waiver of his right to be present at his sentence reduction hearing did not validly waive his right to be present at his sentencing, because “defendant’s waiver form cannot reasonably be constmed to embrace a knowing and intelligent waiver of his presence at the time of sentence” (italics added)]; see also People v. Price (1991) 1 Cal.4th 324, 405 [3 Cal.Rptr.2d 106, 821 P.2d 610]; People v. Sully (1991) 53 Cal.3d 1195, 1238-1240 [283 Cal.Rptr. 144, 812 P.2d 163]; People v.

Lang (1989) 49 Cal.3d 991, 1026 [264 Cal.Rptr. 386, 782 P.2d 627].) In each of these cases, however, it was the defendant himself who waived his presence; in contrast, in this case, defendant’s counsel purported to waive his presence for him. It does not appear that we have addressed the question whether defense counsel may waive the defendant’s presence. Some federal cases that have addressed this issue have held that defense counsel may do so, but only if there is evidence that the defendant consented to the waiver. (E.g., Carter v. Sowders (6th Cir. 1993) 5 F.3d 975, 981-982; Larson v.

Tansy (10th Cir. 1990) 911 F.2d 392, 396-397; but see United States v. Gordon (D.C. Cir. 1987) 264 U.S. App. D.C. 334, 829 F.2d 119, 125-126 [personal on-the-record waiver of presence right required].) At a minimum, there must be some evidence that the defendant understood the right he was waiving and the consequences of doing so. (See United States v. Nichols (2d Cir. 1995) 56 F.3d 403, 416-417.) Here, there is scant evidence of consent, and even less evidence that defendant understood the right he was waiving and the consequences of his waiver.

All the record shows is that defense counsel represented to the court that counsel had discussed the hearing with defendant and that defendant would waive his presence. There is no evidence that defense counsel informed defendant of his right to attend the hearing; nor is there evidence that defendant understood that by absenting himself from the hearing he would be unable to contribute to the discussion of the contents of the tape recording. Accordingly, we cannot conclude that defendant knowingly and intelligently waived his right to presence at the hearing. We turn now to the question of prejudice.

Under the federal Constitution, error pertaining to a defendant’s presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23 [17 L.Ed.2d 705, 87 S.Ct. 824]. (People v. Robertson (1989) 48 Cal.3d 18, 62 [255 Cal.Rptr. 631, 767 P.2d 1109]; see Campbell v. Rice (9th Cir. 2005) 408 F.3d 1166, 1172-1173.) Error under sections 977 and 1043 is state law error only, and therefore is reversible only if “ ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)” (People v. Jackson, supra, 13 Cal.4th at p. 1211; see also People v.

Mayfield (1997) 14 Cal.4th 668, 738-739 [60 Cal.Rptr.2d 1, 928 P.2d 485].) Defendant asserts that had he been present at the May 16, 1989 hearing, he could have assisted his attorney in deciphering the tape recording and filling in many of the portions of the transcript that were marked “unintelligible.” He further asserts that some of the most prejudicial excerpts (such as excerpt 9, in which he admits to having had a chance to “get some nuts off,” indicating he could have raped victim Boyd), would have been deemed irrelevant and inadmissible. We disagree.

First, defendant’s attorneys had access to the tape and the proposed transcript before the May 16, 1989 hearing. Thus, they had ample opportunity to discuss the contents with defendant and to seek his assistance in deciphering the recorded conversation. Assuming they did so, defendant’s presence at the hearing would have added little to his attorneys’ ability to argue the admissibility of the excerpts. Further, the trial court’s rulings at the May 16, 1989 hearing were without prejudice to later arguments that the transcript was inaccurate or that certain portions were not admissible.

Thus, it appears that defendant’s counsel could have consulted with him after the hearing, and could have brought to the court’s attention at a later time any possible contributions or corrections that defendant might have made. But even assuming defendant and his counsel had no opportunity to review the tape and transcript either before or after the hearing, there is no way on this record to determine, had defendant been present at the hearing: (1) whether he could have filled in the “unintelligible” portions of the tape and transcript; (2) whether the prosecutor would have agreed to defendant’s

interpretation; and (3) had defendant’s

interpretation been agreed to, whether the resulting transcript of the tape recording would have been less prejudicial to defendant than the transcript used at trial. Because we do not know what defendant would have said about the unintelligible portions on the tape, it seems equally reasonable to assume that his clarifications would have done nothing to make the tape less incriminating or perhaps made it even more incriminating. Second, although the transcript contains numerous passages marked “unintelligible,” the vast majority of the crucial passages that linked defendant to the shooting were intelligible.

As explained below at pages 537 to 538 and 546 these unblemished passages sufficed to establish defendant’s identity as the shooter and provided all the legal corroboration necessary for the jury to credit Brown’s testimony. Defendant also contends that had he been present at the hearing he could have assisted his attorneys in identifying the voices on the tape. But as explained below at pages 545 to 546, the jury could have identified the voices by analyzing what was said without relying on Brown’s voice identifications.

Defendant’s contribution to the voice identification effort, assuming he would have been willing to provide it, would not have changed the words that were on the tape or the jury’s ability independently to analyze those words. For all of these reasons, we conclude that defendant’s absence from the May 16, 1989 hearing was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 23.) It follows that it is not “ ‘reasonably probable’ ” that a result more favorable to defendant would have been reached had he been present. (People v. Jackson, supra, 13 Cal.4th at p. 1211.) C.

Admission of Hearsay Statements of Redmond and Bennett on Tape Excerpts 1. Admissibility of hearsay on the tape excerpts The prosecution offered into evidence 51 separate excerpts of the taped jailhouse conversations. Defendant challenged each excerpt as inadmissible hearsay (Evid. Code, § 1200) and asked the trial court to consider each excerpt separately to determine whether it fell within any hearsay exception. The court declined to do so.

The court did exclude two excerpts, but it admitted the remaining 49 either as statements of defendant, as adoptive admissions, or as providing context to defendant’s statements. The court also ruled that the probative value of the excerpts outweighed any prejudicial effect. (See Evid. Code, § 352.) At trial, the tape recording (designated People’s exhibit 31) and a transcript (designated People’s exhibit 32) of the 49 excerpts were both admitted into evidence.

Brown identified each of the speakers on the tape, and testified that the initials “DR” for Damon Redmond, “DB” for Donald Bennett, and “SD” for defendant appearing on the transcript identified the person who, in Brown’s opinion, was the speaker in each passage.

The court told the jury that except where the transcript indicated “unintelligible” or had words in parentheses, the parties agreed to the words on the tape but did not agree as to who said what; that the initials on the transcript reflected only Brown’s opinion as to who was speaking; and that ultimately it was for the jury to decide what words were said, who said them, and what relevance those words had to the case. Defendant now contends that 16 of the excerpts admitted into evidence contain hearsay statements by either Bennett or Redmond.

He faults the trial court for declining to consider separately the admissibility of each tape excerpt, and for its giving of inadequate jury instructions on adoptive admissions, which together, he asserts, resulted in jury consideration of prejudicial hearsay statements by Redmond and Bennett, in violation of state and federal law. We disagree. 2. Legal principles Hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid.

Code, § 1200, subd. (a).) Hearsay is not admissible unless it qualifies under some exception to the hearsay rule. Two hearsay exceptions are relevant here. A defendant’s own hearsay statements are admissible. (See id., § 1220; People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5 [22 Cal.Rptr.3d 305, 102 P.3d 228]; People v.

Carpenter (1999) 21 Cal.4th 1016, 1049 [90 Cal.Rptr.2d 607, 988 P.2d 531].) A statement by someone other than the defendant is admissible as an adoptive admission if the defendant “with knowledge of the content thereof, has by words or other conduct manifested his adoption [of] or his belief in its truth.” (Evid. Code, § 1221; see People v. Preston (1973) 9 Cal.3d 308, 314 & fn. 3 [107 Cal.Rptr. 300, 508 P.2d 300].) In determining whether a statement is admissible as an adoptive admission, a trial court must first decide whether there is evidence sufficient to sustain a finding that: (

a) the defendant heard and understood the statement under circumstances that normally would call for a response; and (

b) by words or conduct, the defendant adopted the statement as true. (Evid. Code, §§ 403, 1221; People v. Carter (2003) 30 Cal.4th 1166, 1198 [135 Cal.Rptr.2d 553, 70 P.3d 981]; People v. Preston, supra, 9 Cal.3d at p. 314 & fn. 3.) Generally, this requires separately examining each excerpt of the tape-recorded conversations. (See Williamson v.

United States (1994) 512 U.S. 594, 599-602 [129 L.Ed.2d 476, 114 S.Ct. 2431] [trial court erred in admitting a lengthy narrative as a statement against penal interest under Federal Rules of Evidence, rule 804(b)(3) (28 U.S.C.) on the ground that it was generally self-inculpatory; rather, the trial court should have examined each individual statement or remark within the longer narrative to determine whether it was inculpatory or exculpatory]; accord, People v.

Lawley (2002) 27 Cal.4th 102, 153 [115 Cal.Rptr.2d 614, 38 P.3d 461].) Evidence of an out-of-court statement is also admissible if offered for a nonhearsay purpose—that is, for something other than the truth of the matter asserted—and the nonhearsay purpose is relevant to an issue in dispute. (People v. Turner (1994) 8 Cal.4th 137, 189 [32 Cal.Rptr.2d 762, 878 P.2d 521]; People v. Armendariz (1984) 37 Cal.3d 573, 585 [209 Cal.Rptr. 664, 693 P.2d 243].) For example, an out-of-court statement is admissible if offered solely to give context to other admissible hearsay statements. (People v.

Turner, supra, 8 Cal.4th at pp. 189-190.) Here, the excerpts of the recorded jailhouse conversations and the transcripts made of those recorded excerpts were evidence of statements made by someone “other than by a witness while testifying at the hearing” (Evid. Code, § 1200, subd. (a))—in other words, out-of-court statements by defendant, Redmond, and Bennett. Thus, statements on the tape qualified as hearsay to the extent the prosecution was offering those statements to prove the truth of the facts being asserted by the speaker.

These statements were inadmissible unless, as relevant here, they were defendant’s own statements, or they qualified as adoptive admissions of defendant, or they were offered for a nonhearsay purpose. 3. Defense contentions Defendant argues here that seven of the excerpts of the recorded conversations were improperly admitted as adoptive admissions because defendant’s response to an assertion made by Redmond or Bennett was either unintelligible or indicated defendant did not hear or understand the assertion.

For example, in one exchange (excerpt 47 of People’s exhibits 31 and 32) Bennett asks defendant, “You know what else I am wondering?” to which defendant responds “What?” Bennett then states, “They found it in the case he had it in,” to which defendant answers “A what?” We conclude that each of these excerpts, as well as the others to which defendant now objects, were properly admitted. As explained on page 535, ante, a statement is admissible as an adoptive admission if “there is evidence sufficient to sustain a finding” (Evid.

Code, § 403, subd. (a)) that the defendant heard and understood the statement under circumstances calling for a response and by words or conduct adopted it as true. That standard is amply met here. For example, shortly after the exchange quoted above is the statement by defendant “if they did, oh man, why man?” indicating defendant both heard what Bennett said and understood it referred to the Uzi Brown had put in Harris’s briefcase. Moreover, the trial court told the jurors to listen to the tape and decide for themselves what was being said and by whom.

Thus, it was up to the jury to decide what words defendant spoke and whether through his words or silence he adopted the comments by Redmond and Bennett. In doing so, the jury could have considered numerous factors, such as tone of voice and inflection, that are not reflected in the transcript. Defendant also argues that portions of certain excerpts (1 and 11) were inadmissible because Redmond was recounting his conversations with police, conversations defendant could not have heard. (See Evid.

Code, § 1221 [adoptive admission requires that party have “knowledge of the content” of the declarant’s statement].) But these statements by Redmond not only recounted his conversations with police but also implicated defendant in the kidnapping and murder of Boyd and Harris.

For example, Redmond describes how the police asked him “12 times” whether he had seen defendant shoot the victims, to which defendant’s only reply was, “Oh man ... 12 times.” From this response, the jury reasonably could have concluded that by not denying that he had shot the victims, defendant had implicitly adopted the substance of Redmond’s statement that defendant was the shooter.

Defendant further contends that the last line or paragraph of certain excerpts of the tape-recorded conversations (1, 4 to 6, 8 to 11, 14, 15, 37 and 41) should have been excluded because the speaker was someone other than defendant and there was no way to determine what defendant said or did in response. We disagree. We have examined each of these statements and conclude they were either innocuous or nonprejudicial in the face of a damaging admission or adoptive admission by defendant earlier in the excerpt.

Moreover, although Brown had identified each of the speakers on the tape recording, it was ultimately for the jury to decide who was speaking. In some instances, the jury may have concluded that the person making the last statement on the excerpt was not Redmond or Bennett but defendant. Even assuming some of the challenged excerpt portions should not have been admitted, defendant suffered no possible prejudice. The trial court instructed the jury to consider statements by Redmond and Bennett only to the extent defendant through his own comments or conduct had adopted those statements.

We presume the jury followed this instruction. (People v. Turner, supra, 8 Cal.4th at p. 190; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [286 Cal.Rptr. 801, 818 P.2d 84].) Moreover, the jury reasonably could have concluded from defendant’s comments in other excerpts not challenged here that defendant had admitted being the shooter. For example, defendant made the following statement referring to the police having learned the details of the crime from Brown: “No mother fucker didn’t see me shoot no-mother-fuckin-body.

Tell you the truth, the mother fucker that told them that didn’t really see you know, they just heard, you know what I’m sayin’?” Although any inadmissible hearsay statements of Redmond and Bennett might have incrementally bolstered Brown’s credibility, it is not reasonably probable that their admission affected the verdict (People v. Watson, supra, 46 Cal.2d 818, 836) because they were inconsequential in light of the vast quantity of admissible, highly damaging evidence on the tape in the form of defendant’s own statements and adoptive admissions.

Finally, defendant faults the trial court for failing to consider each excerpt individually in ruling on admissibility. Rather, the court simply concluded that the “overall scene” was one in which defendant would have been expected to object, and that any statements that were not adoptive admissions were admissible to give context to defendant’s statements. Even had the trial court individually considered each excerpt, however, there is no reasonable probability that the outcome of the trial would have been more favorable to defendant (People v. Watson, supra, 46 Cal.2d at p. 836; see Evid.

Code, § 353, subd. (b)) because, as we have concluded, all of the excerpts defendant challenges on appeal were properly admitted. For the same reason, we reject defendant’s contention that admission of the tape excerpts without individual consideration violated his Fifth and Fourteenth Amendment right to due process of law, his Sixth Amendment right to confront and cross-examine witnesses, and his Eighth Amendment right to reliability in the guilt and sentencing determinations. 4.

Special Instruction A At a hearing on jury instructions, the trial court said it was disinclined to instruct on CALJIC No. 2.71.5 (adoptive admissions—silence, false or evasive reply to accusation) because there were no direct accusations made to defendant. In addition, defense counsel objected to CALJIC No. 2.71.5 on the ground that defendant’s silence in the face of accusatory statements was based on his Fifth Amendment right to remain silent. The court also said it would not give CALJIC No. 3.13 (accomplices may not corroborate one another) because cosuspects Redmond and Bennett did not testify.

Ultimately, the court gave an alternative to CALJIC Nos. 2.71.5 and 3.13, entitled “Special Instruction A,” which provided: “As to People’s Exhibit 31, the tape recording of conversations in the holding cell area of the West Los Angeles Station of the L.A.P.D., you are instructed as follows: [f] Statements on that tape which you find beyond a reasonable doubt to have been spoken by the defendant may be considered by you to determine if they constitute an admission or admissions as previously defined in these instructions.

If you find that the defendant made any admissions, such admissions may be considered in determining whether the testimony of DeAndre Brown has been corroborated, [f] Statements on that tape made by any person other than defendant may not, in and of themselves, be considered as possible corroboration of the testimony of DeAndre Brown. Such statements may be considered by you only for the purpose of explaining what the defendant meant by any statements made by him and/or as a possible implied admission by the defendant.

Such statements may be considered by you for one or both of those purposes only if you find both of the following to be true beyond a reasonable doubt: One, the defendant heard and understood the other [person’s] statement; and Two, the defendant expressly or impliedly indicated that the other [person’s] statement was true. [][] Any implied admission by the defendant may be considered as possible corroboration of the testimony of DeAndre Brown.” Defendant now contends that the trial court had a duty to give CALJIC No. 2.71.5 on its own initiative. We disagree.

A trial court has no duty to so instruct the jury without a request from counsel. (People v. Carter, supra, 30 Cal.4th at pp. 1197-1198.) Defendant further argues that Special Instruction A was defective in several respects. Because defendant expressly agreed to this instruction, he is barred from challenging it on appeal under the doctrine of invited error. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135 [36 Cal.Rptr.2d 235, 885 P.2d 1]; People v. Cooper (1991) 53 Cal.3d 771, 830-831 [281 Cal.Rptr. 90, 809 P.2d 865].) In any event, defendant’s attacks on the instruction lack merit.

Contrary to defendant’s contention, Special Instruction A was not defective in failing to tell the jury that a statement made by defendant could not be an adoptive admission (or, in the court’s terminology, an “implied” admission) unless it responded to an accusation against him. For the adoptive admission exception to the hearsay rule to apply, no “direct accusation in so many words” is necessary. (People v.

Fauber (1992) 2 Cal.4th 792, 852 [9 Cal.Rptr.2d 24, 831 P.2d 249].) Rather, it is enough that the evidence showed that the defendant participated in a private conversation in which the crime was discussed and the circumstances offered him the opportunity to deny responsibility or otherwise dissociate himself from the crime, but that he did not do so. (Ibid.) Here, Special Instruction A informed the jury of these requirements by noting that defendant had to have “heard and understood” the declarant’s statement and “expressly or impliedly indicated its truth.” Defendant next contends that Special Instruction A failed to inform the jury that a defendant must have “knowledge of the content” of the declarant’s statement. (See Evid.

Code, § 1221.) According to defendant, the knowledge requirement refers not just to knowledge of the words the declarant spoke, but more specifically to knowledge of the subject matter referred to in the declarant’s statements. Even assuming the instruction did not convey that precise meaning, there was no prejudice to defendant.

The jury could not have concluded that, as the instruction stated, defendant “heard and understood” another’s statement and “expressly or impliedly indicated that the . . . statement was true” unless the jury also decided that defendant was familiar with the subject matter of the statement to which he impliedly assented. Defendant complains that Special Instruction A was inadequate because it lacked the admonition in CALJIC No. 2.71.5 that the declarant’s statements cannot be considered for their truth. We disagree.

The instruction told the jury that statements of the speakers on the tape other than defendant could be considered only for the purpose of “explaining what the defendant meant by any statements made by him and/or as a possible implied admission.” The instruction went on to explain that to conclude that any statement constituted an “implied” admission the jury had to “find both of the following to be true beyond a reasonable doubt: One, the defendant heard and understood the other [person’s] statement; and Two, the defendant expressly or impliedly indicated that the other [person’s] statement was true.” The trial court also instructed under CALJIC No. 2.09 that the jury was to consider evidence only for the limited purpose for which it was admitted.

These instructions together advised the jury that the statements by Redmond and Bennett could be considered only insofar as they gave meaning to defendant’s own express or implied admissions. Further, we are not persuaded that Special Instruction A was deficient in not telling the jury that it must disregard any statements of others that it did not find that defendant adopted. (Cf.

CALJIC No. 2.71.5.) This notion was implicit in the instruction’s admonition that the jury could consider statements of others only if it found “beyond a reasonable doubt” that “the defendant expressly or impliedly indicated that the other [person’s] statement was true.” CALJIC No. 2.09, which told the jury to consider evidence only for the limited purpose for which it was admitted, reinforced this concept. We presume the jury followed these instructions. (People v. Turner, supra, 8 Cal.4th at p. 190; People v.

Mickey, supra, 54 Cal.3d at p. 689, fn. 17.) Finally, we note that the inclusion in Special Instruction A of a beyond-a-reasonable-doubt requirement—that the jury find beyond a reasonable doubt that defendant heard and understood another’s statement and expressly or impliedly indicated it was true—was substantially more favorable to defendant than the standard instruction on adoptive admissions, CALJIC 2.71.5. We express no opinion, however, on whether such language was required. In sum, Special Instruction A adequately advised the jury of the requirements for finding adoptive admissions and of their proper use.

D. Accomplice Corroboration

Section 1111 prohibits a conviction based “upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.” Defendant raises several contentions based on this provision. Specifically, he focuses on accomplice DeAndre Brown’s testimony, which at trial provided the primary evidence against defendant.

According to defendant, his convictions for two counts of capital murder, robbery, and kidnapping, as well as the arson and grand theft convictions and the robbery-murder and kidnapping-murder special circumstances, all must be set aside because erroneous and confusing jury instructions, misleading prosecutorial argument, and tainted evidence allowed the jury to convict defendant without understanding that Brown’s testimony had to be corroborated by independent evidence connecting defendant to the crimes.

Defendant also asserts that the instructions did not properly inform the jury that statements by the other accomplices—Redmond and Bennett—could not be used to corroborate Brown’s testimony. We reject these contentions. 1. Facts At the guilt phase of defendant’s trial, accomplice Brown testified, giving his firsthand account of the kidnappings and murders of Boyd and Harris. The prosecution sought to corroborate Brown’s testimony with evidence of the recorded conversations in jail among defendant, Redmond, and Bennett.

At one point, the trial court discussed with the prosecutor and defense counsel the procedure for playing that tape. Defense counsel objected to providing the jury with a copy of a transcript of the tape that included initials reflecting Brown’s identification of each speaker. The trial court overruled this objection.

Ultimately, the court admonished the jury: “The attorneys have listened to the . . . tape and followed it in the transcript, and have reached an agreement that certain words were said. [j[] This agreement does not cover who said them, it does not cover anything other than these are the words that the attorneys hear . .. . [j[] You will find that on the transcript, there are three sets of initials: S.D., D.R., and D.B., standing respectively for the names Stanley Davis [defendant], Damon Redmond, Donald Bennett. . . . [f] That merely indicates that Mr.

Brown is going to testify that, in his opinion, that statement that you hear is made by the person whose initials are indicated. It does not amount to an agreement by the attorneys that in fact that is the person talking on the tape. It’s merely a quick and short way of having you understand that that’s the voice identification made by Mr. Brown, and it has no other significance. . . . [f ] And I want to emphasize that the placing of the initials to the side of the statement indicates only one thing: That it’s Mr.

Brown’s opinion based on his experience with the individuals that that’s who’s talking. ...[][] You must understand that the agreement between the lawyers is only that these are the words being said. They are not agreeing that these things pertain to this case.

Whether they do or not, that’s for you to decide, [f] More than that, what relevancy they have, if they do apply to this case, what weight is to be given to them, what significance, that’s for you to decide, [f] Also, you must understand that you are the final judges of what is said on this tape recording, [f] This transcript has been prepared as an aid to following through, but it is not binding upon you.” The jury then heard the tape recording.

Thereafter, Brown testified that he was in the courtroom when the tape was played, that he had seen the transcript of the tape, and that the initials on the transcript accurately reflected who was speaking, except that he could not say for sure that the passages marked “D.B.” were actually spoken by Bennett.

The trial court gave CALJIC Nos. 2.09 (evidence admitted for a limited purpose), 2.71 (admissions), 3.10 (definition of an accomplice), 3.11 (testimony of an accomplice must be corroborated by other evidence connecting defendant with the offense), 3.12 (sufficiency of evidence to corroborate an accomplice), 3.16 (Brown an accomplice as a matter of law), and 3.18 (accomplice testimony should be viewed with distrust). The court also gave Special Instruction A, which told the jury to consider the recorded statements of the speakers other than defendant only insofar as they explained defendant’s statements.

In addition, the court gave “Special Instruction B,” which read in pertinent part: “The initials which appear in the left margin of People’s Exhibit [No.] 32 only represent De Andre Brown’s opinion as to the identity of the speaker .... Counsel have not agreed as to the identity of any speaker on People’s Exhibit [No.] 31. The identity of any speaker on People’s Exhibit [/Vo.] 31 is for you to decide.” 2.

Claim of instructional error—use of Brown’s voice identifications Defendant contends that Special Instruction A was deficient in not telling the jury that, in determining whether statements on the tape corroborated Brown’s trial testimony describing the circumstances of the killings, it could not rely on the written initials on the transcript that Brown matched with voices on the tape. We reject this contention.

Section 1111 requires corroboration of accomplice testimony.

It provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof, [f] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” {Ibid.) The trial court instructed the jury that Brown was an accomplice as a matter of law.

Thus, for the jury to rely on Brown’s trial testimony about the circumstances of the robberies, kidnappings and murders of Boyd and Harris, it had to conclude that evidence independent of Brown’s testimony linked defendant to those crimes. (§ 1111; People v. Rodrigues, supra, 8 Cal.4th at pp. 1128-1130; People v. Tewksbury (1976) 15 Cal.3d 953, 969 [127 Cal.Rptr. 135, 544 P.2d 1335].) Such evidence could not come from the other two accomplices, Redmond and Bennett (see People v. Tewksbury, supra, 15 Cal.3d at p. 958), or from Brown himself (see People v.

Andrews (1989) 49 Cal.3d 200, 214 [260 Cal.Rptr. 583, 776 P.2d 285]). Rather, under

section 1111, there had to be evidence tending to connect defendant with the crimes “without aid or assistance from the testimony of’ Brown, for instance, his testimony that the initialing on the tape transcript accurately reflected who was speaking. (People v. Perry (1972) 7 Cal.3d 756, 769 [103 Cal.Rptr. 161, 499 P.2d 129].) Such independent evidence “ ‘need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require

interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth . . . .’ [Citations.]” (Id. at p. 769, italics added; see also People v. Rodrigues, supra, at p. 1128.) In this case, the only source of independent corroboration of Brown’s trial testimony was the jailhouse tape recording on which defendant, through his statements and adoptive admissions, implicated himself in the crimes.

Thus, the task for the jury was to determine, independently of Brown’s testimony, including his voice identifications, whether any statements by defendant on that tape linked him to the charged crimes. Once the jury did so, it was free to rely on the whole of Brown’s testimony, including his identification of the other voices on the tape, in deciding the question of defendant’s guilt. As we explain, the jury instructions adequately advised the jury. CALJIC No. 3.12, given here, told the jury that accomplice Brown’s testimony had to be corroborated by evidence which, “if believed, by itself and without any aid,

interpretation or direction from” Brown, connected defendant to the crimes. The instruction continued: “In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case.

You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime.” In addition, Special Instruction B specifically told the jury that the parties did not agree that the initials on the transcript corresponding to Brown’s voice identifications accurately reflected who was speaking, and that “the identity of any speaker” on the tape was a question for the jury.

Given these instructions, the jury would have understood that, before it could consider Brown’s trial testimony describing the circumstances of the crimes, it had to decide, without the aid of Brown’s voice identifications, that defendant’s statements on the tape connected him to those crimes. Defendant contends that the instructions failed to advise the jury adequately that it could not use Brown’s voice identifications to assist it in finding the independent corroboration that

section 1111 requires. Thus, he asserts the instructions did not preclude the jury from using evidence derived from accomplice Brown (his voice identifications) to aid it in finding the required corroboration. Assuming for the sake of argument that defendant is not barred from raising this claim under the doctrine of invited error, because he expressly consented to Special Instmction A (see ante, at p. 539; People v. Rodrigues, supra, 8 Cal.4th at p. 1135), the instmctions were proper.

As explained above, CALJIC No. 3.12 and Special Instruction B correctly explained to the jury that it had to disregard Brown’s testimony, including his voice identifications, before attempting to find statements by defendant on the jailhouse tape linking defendant to the crimes. Thus, these instructions correctly told the jury how to find independent corroboration of Brown on the jailhouse tape. Defendant posits that the jury might have concluded that Special Instruction A superseded the general instructions on accomplice testimony, including CALJIC No. 3.12. Not so.

The trial court admonished the jury, under CALJIC No. 1.01, to view the instructions as a whole and not to “single out any particular sentence or any individual instruction and ignore the others.” We presume the jury followed this instruction. (People v. Turner, supra, 8 Cal.4th at p. 190; People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.) Defendant contends that the jury could not have followed the trial court’s instructions because the jailhouse tape—the only possible source of independent corroboration—was tainted by Brown’s voice identifications.

According to defendant, the jury would have relied on Brown’s voice identifications as reflected by the initials on the tape’s transcript in determining the identity of each speaker. We disagree. We presume that the jury followed the court’s instruction to “assume the testimony of [Brown] has been removed from the case” before the jury itself decided upon the identity of each speaker on the tape and then determined that some of defendant’s comments provided independent corroboration for Brown’s trial testimony.

Defendant suggests that the jury would not have understood that the testimony of Brown referred to in CALJIC No. 3.12 included the initials on the transcript corresponding to Brown’s voice identifications.

But defense counsel in argument specifically told the jury to “draw a line through the initials” and “remove the initials from the transcript because that’s Brown.” And the prosecutor argued “no one attacked Deandre Brown’s version of who the voices were, the legend on the tape.” In light of these arguments, the jury would have understood that Brown’s testimony included his voice identifications and the initials on the transcript, and that these could not be considered when the jury determined who was speaking on the tape.

Defendant also contends that comments by the prosecutor confused the jury about its obligation to consider corroborating evidence before considering Brown’s testimony. For example, the prosecutor stated that Brown was the only “direct independent source of evidence in this case presented by a live witness to establish whose voices are on that tape,” and that “the most obvious person you call to identify the voices and to make use of that tape” was Brown. We disagree.

The prosecutor correctly told the jury that the corroborating evidence had to be independent of Brown’s testimony, and that the jury had to determine the identities of the speakers on the tape. The prosecutor suggested that in light of Detective Evans’s and Detective DeAnda’s trial testimony that Redmond and Bennett had told them they were present at the murder scene, the jurors could logically deduce that the person who stated on the tape “I didn’t tell them” must have been defendant. No comment by the prosecutor misled the jury. 3.

Insufficiency of corroborating evidence Defendant contends that the corroborating evidence itself was insufficient to sustain his convictions for the murders, robberies, and kidnappings of Boyd and Harris and the special circumstances of robbery murder and kidnapping murder because the jury could not have found evidence linking defendant to the crimes independent of Brown’s testimony. (See People v. Hamilton, supra, 48 Cal.3d 1142, 1177 [when special circumstance requires proof of some other crime, that crime cannot be proved by the uncorroborated testimony of an accomplice]; see also People v.

Bowley (1963) 59 Cal.2d 855, 861-862 [31 Cal.Rptr. 471, 382 P.2d 591] [corroborating evidence was insufficient to sustain defendant’s conviction where the value of the evidence rested entirely on the testimony of the accomplice].) Had, for example, Brown’s testimony been necessary to identify the voices on the tape, the independent corroboration rule would not have been satisfied. (See People v. Bowley, supra, 59 Cal.2d at p. 862, fn. 6.) But, as we have explained, that was not the case.

In addition to the methods the prosecutor outlined, there were a number of ways for the jury to identify the voices on the tape. For example, as defense counsel suggested, in several excerpts (9, 26, 40) one speaker addresses another as “Stan.” From that comment, the jury could have concluded that the person who responded in these excerpts was defendant, Stanley Davis, and having thereby identified defendant’s voice, the jury could have determined when defendant was the speaker elsewhere on the tape.

Having listened to the tape, we conclude that defendant’s voice is identifiable and distinguishable from the voices of the other speakers. Moreover, in several comments defendant makes (excerpts 9, 15, 16, 23, 24, 26, 27, 31, 34, 38, 45, and 48) there are links to the charged crimes of murder, robbery, and kidnapping. These comments thus sufficiently provide the legal corroboration that

section 1111 requires. Accordingly, substantial, independent evidence corroborates Brown’s trial testimony and supports defendant’s convictions as well as the findings on the special circumstances of murder in the course of a robbery and murder in the course of kidnapping for robbery. 4. Use of Redmond’s and Bennett’s statements Defendant contends that Special Instruction A did not adequately tell the jury that hearsay statements by accomplices Redmond and Bennett, both on and off the tape, could not be used to corroborate Brown’s trial testimony.

Defendant further contends that the trial court erred in declining to instruct the jury that Redmond and Bennett were accomplices as a matter of law (CALJIC No. 3.16) and by declining to give CALJIC No. 3.13, which, as applicable here, pr

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