THE PEOPLE, Plaintiff and Respondent, v. MAURICE LYDELL HARRIS, Defendant and Appellant, 37 Cal. 4th 310

Opinion CHIN, J. A jury found defendant Maurice Lydell Harris guilty of the attempted murder of Bernard Canto (Pen. Code, §§ 187, 664) and the murders of Alicia Allen and her fetus (§ 187), finding that he committed the murders under the special circumstances of felony-murder robbery, felony-murder burglary (§ 190.2, subd. (a)(17)(A), (G)), and multiple murder (§ 190.2, subd. (a)(2)).

The jury also found defendant guilty of robbery and burglary (§§ 211, 459), and found that he personally used a firearm in the commission of the attempted murder (§ 12022.5), that he was personally armed during the commission of the murders, the robbery, and the burglary (§ 12022, subd. (a)(1)), and that he inflicted great bodily injury in the commission of the attempted murder (§ 12022.7, subd. (a)). After a penalty trial, the jury returned a verdict of death for the murder of Allen, and life without the possibility of parole for the murder of Allen’s fetus.

The court denied the automatic motion to modify the verdict of death (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. FACTS A. Guilt Phase 1. Prosecution Evidence At 10:25 p.m. on August 9, 1994, a Gardena police officer on patrol saw Bernard Canto stumble and fall to the pavement in front of his police car on South Vermont Boulevard. Canto stated he had been shot near where his van was parked. The police found Canto’s van parked nearby in front of the gated apartment complex where defendant lived.

On the passenger side of the van they found blood and nine-millimeter shell casings. Across the street they found a bloody shirt and a pair of bloody shorts containing a wallet, papers, and phone cards bearing Canto’s name, $150 in cash, and a beeper. The security officer on duty at defendant’s apartment complex told police that, earlier that night, two men talked to him for a short time in the security office, and approximately a half-hour later he heard gunshots outside the security gates.

He saw a white car and a blue car that had been in the middle of the street back up and drive off in the wrong direction down South Vermont Boulevard. At 11:11 p.m., within an hour of Canto’s shooting, the Gardena police responded to a call regarding a shooting at Canto’s house on West Marine Avenue, approximately 1.6 miles from the site of the South Vermont Boulevard shooting. Loud music could be heard coming from inside the house. A chain-link fence surrounded the house, and a security gate on the front door was shut and locked.

The police went to the back of the house through an open gate and found a bloodstain and a jammed nine-millimeter Beretta handgun on the driveway. Inside the house they found Canto’s fiancée, Alicia Allen, who was 17 weeks pregnant, lying facedown on the bed with her hands tied behind her back with a sock and twine. She had been shot twice in the head. Allen and her fetus were dead. In the dining room police found an open key box on the wall and keys scattered on the floor.

The living room couch was in disarray, and amidst the upended cushions police found a gold chain and a broken fingernail with nail polish matching that worn by Allen. The bedroom had been ransacked. A nine-millimeter handgun and bullets were in a dresser drawer that had been pulled out of the dresser and placed on the bed, and expended bullets and shell casings were found on the floor. The gun found in the driveway, which bore no discemable fingerprints, had fired all of the bullets used to shoot Allen and Canto, as well as the bullets from the bedroom.

The bloodstain in the driveway possessed genetic characteristics consistent with defendant’s blood. From the area where the bloodstain was found, police found trace amounts of human genetic material that did not match either Allen or defendant and that could have come from any bodily fluid. The police could not determine how long that material had been on the driveway. Several of Canto’s neighbors on West Marine Avenue testified that on the night of August 9, 1994, they saw two Black men dressed in dark clothing approach Canto’s house.

One of the men stayed on the sidewalk in front of the security gate, and the other went to the front door where he met and talked to Allen, and then went inside with her. Within 10 or 15 minutes the neighbors heard three or four gunshots in quick succession, and shortly thereafter saw two Black men fleeing on foot eastward on West Marine Avenue, at least one of whom was limping. One of the men was husky and six feet tall and may have worn his hair in dreadlocks or a ponytail. The other man was thin and may have worn a hat.

The neighbors did not see anyone else come out of Canto’s house, or see anyone get into a car and drive away. (The record gives no indication of the identity of the other person.) Although Canto survived the shooting of August 9, 1994, he was murdered in Chicago in November 1995, and therefore was unavailable to testify at trial in 1996. The prosecution read into the record the transcript of his preliminary hearing testimony. Canto testified that in August 1994, he earned a living by restoring and selling cars bought at auction.

He paid cash for the cars, and often kept large sums of money in the house he shared with Allen on West Marine Avenue. On August 9, 1994, at 8:30 p.m., Canto received a call from defendant, whom he considered to be his friend and with whom he had engaged in several business dealings. Defendant told Canto to pick him up at the comer of Normandie and Rosecrans Avenues and defendant would repay a debt of $1,500 he owed Canto. Canto left his house at 9:30 or 10:00 p.m., picked up defendant, and drove back to defendant’s apartment complex on South Vermont Boulevard.

He and defendant went upstairs to defendant’s apartment, but because defendant had forgotten his keys they could not get in. On their way back to Canto’s van they stopped and talked to the security guard of the apartment complex and asked him if he had an extra key to the apartment. Canto and defendant then got back into Canto’s van and returned to an address at Normandie and Rosecrans Avenues, where defendant retrieved his apartment keys from his girlfriend. Canto and defendant then returned to defendant’s apartment complex.

Canto testified that he parked his van in front of defendant’s apartment, got out, locked the door, walked around the van, and heard repeated gunshots. He turned around and saw defendant shooting at him from seven feet away, with his arm outstretched holding a black nine-millimeter gun. Canto asked defendant, “Maurice, why?” Defendant laughed. Canto testified bullets hit him in the back, side, and hip. He fell, then got up and walked to the side of the street where he encountered the police car. Canto told police that when he left his house that evening everything was in order.

Allen was alive, wearing a pair of diamond earrings, a gold chain, an engagement ring, a gold wedding band, a class ring, and another gold ring. Three of these rings she wore all the time and never took off. He kept $500 in cash in the bedroom drawer. When Canto returned to the house after a month in the hospital, he did not specifically check for missing items, but he did note that the $500 in cash and a car phone were missing. Canto did not at first identify defendant as the man who shot him.

At the scene of the shooting, when paramedics were attending to his wounds, he told police his shooter was a Black male, 29 to 30 years old. A detective of the Gardena Police Department testified that when he interviewed Canto in the intensive care unit of the hospital in the early morning of the second day following the shooting, Canto first told him a Black male had come up and shot him for no apparent reason.

The detective testified that it was clear Canto did not know at the time of that interview that Allen was dead, and when the detective told Canto that Allen had been murdered less than an hour after he had been shot, Canto became very upset, started to cry, and had to be sedated. The detective returned to the hospital the next day and interviewed Canto again. Canto then identified defendant by name as his shooter, described in detail the events of the night of the shooting, and picked defendant’s photograph from a photo lineup.

Canto admitted that he lied the first two times the police interviewed him when he denied knowing the identity of his shooter, and explained that he did so because he was not thinking straight, was in pain, and intended to “take care of the matter” himself by killing defendant. Regina Mills testified that for three or four weeks before September 16, 1994, the date of his arrest, defendant stayed with her at her Los Angeles apartment. Defendant had short hair, but Mills saw him wear a long, curly-haired wig the entire time he was staying with her.

She testified defendant limped and used a cane, and she saw a long, deep, bum-like injury starting near the knee and a hole that looked like a gunshot wound on defendant’s right leg. She saw an injury on a toe on his right foot. Mills testified that while staying at her apartment, defendant met with other men and women, often left the apartment for an hour or two, and made and received numerous phone calls. Mills overheard defendant on the phone say, in a stressed and worried tone, that he should have gone to Allen’s funeral, and that someone who “lived” was in the hospital.

Two days before defendant’s arrest, Mills heard him talk about leaving town. Defendant told Mills the police were looking for him and that he had injured his leg in a shootout during a robbery during which “another guy” had also been shot. He said he thought he shot a pregnant woman. In exchange for her testimony, Mills received immunity from prosecution for charges of harboring a fugitive and receiving stolen property, and was placed in a witness relocation program.

When the police arrested defendant at Mills’s apartment, defendant was carrying a map of Atlanta, telephone numbers for Amtrak railway and Greyhound Bus, marijuana, and a tube of mascara. He was wearing eyeliner, and he was limping. He initially identified himself to the police as Kenny Jordan. Defendant’s duffel bag contained men’s clothing, medicine, six Greyhound Bus tickets to Atlanta, cash, and a large amount of cocaine. After his arrest, defendant called Mills and threatened to kill her because he thought she had informed the police of his whereabouts. 2.

Defense Evidence Defendant testified about the night of the shootings. He admitted that he had told no one the version of events he gave at trial. He denied killing Allen and her fetus, and explained that the shooting resulted from a drug deal gone bad. He explained he went to Canto’s house to deliver cocaine and encountered two men who shot and tried to kill him before he made his escape. Defendant informed the jury that he had been convicted of federal drug possession charges in 1988 and was incarcerated in a federal prison until August 1993. He was on a Christmas furlough in 1992 when he met Canto.

When he was released from federal prison he worked at World Class Coach, an auto body shop in Los Angeles where Canto often brought cars for repair. Defendant and Canto went into business together dealing drugs. Defendant described himself as “kind of a popular guy,” who had a lot of drug world connections because of his recent federal incarceration and explained that he and Canto had engaged in seven large-scale cocaine deals and numerous marijuana deals between March and August of 1994.

He said his role in these deals was “the middle man” who put together buyers with sellers, and explained how he was able to get cheaper prices from certain “contacts” and thereby increase his profits. He had expertise in the “cutting and cooking” of cocaine; he explained how he would use a microwave oven to turn powdered cocaine into rock cocaine, and how he would use specially fashioned metal boxes to compress what he called “procaine” into a “dummy kilo” of fake cocaine to be used to swindle people in drug deals.

Defendant told the jury he was motivated by the “greed and easy money and ego and thrill” associated with drug sales. On the morning of August 9, 1994, Canto contacted defendant at his apartment and told him he had a deal set with buyers from Chicago who wanted to purchase a kilogram of cocaine for $16,000. Defendant went to Canto’s house on West Marine Boulevard to discuss the details of the transaction; defendant would get the cocaine and Canto would page defendant when he was ready to receive the drugs on behalf of the buyers.

That afternoon, defendant went to his supplier, “Greg,” who did not have the exact amount of cocaine defendant wanted but who did have a dummy kilo of fake cocaine defendant had made for him earlier in the week. Greg and defendant decided to use the fake cocaine in the deal with Canto, and Greg agreed to give defendant an additional nine ounces of real cocaine, worth about $4,500, as his payment for conducting the sale of the fake cocaine. Defendant explained that although there was a lot of trust between drug dealers, he decided not to tell Canto the cocaine he would deliver to the buyers was fake.

Defendant testified Canto paged him around 10:00 p.m. Twenty minutes later, defendant drove up to his apartment complex on South Vermont Boulevard and saw Canto standing on the street leaning into a midsize car. Defendant and Canto went upstairs to defendant’s apartment.

Defendant testified he began to have second thoughts about going through with the deal with the fake cocaine because the buyers now knew where he lived; he also stated, however, that he was not concerned that at the time of the exchange the buyers would test the kilo and discover the fraud because Canto told him the buyers were in a hurry and would take the cocaine and go directly to the airport and leave for Chicago.

He explained, “most of the time, believe it or not, that is how it goes.” He thought that a possible way to get out of making the deal would be to make a complaint at the security office of the apartment complex that one of his cars was missing and have the security officer contact the police. Defendant acknowledged that his “greed outweighed his [concerns about] safety,” and it never occurred to him to merely tell Canto that he had not been able to get the amount of cocaine he wanted.

On their way back to the buyer’s car to get the money, defendant and Canto did stop to talk to the security guard at the apartment complex. The conversation lasted about 10 minutes. Canto then got the money from the buyers. Defendant and Canto returned to defendant’s apartment where defendant gave Canto the kilo of fake cocaine. Canto then told defendant he wanted four more ounces of cocaine right away. Defendant agreed to get it from Greg and bring it to Canto’s house as soon as possible.

Canto left, and two minutes later defendant took the $16,000 back to Greg’s apartment, stayed there for 20 minutes, picked up the extra four ounces of cocaine for Canto and $200 in cash, and left for Canto’s house on West Marine Avenue. Defendant testified that when he got to Canto’s house, he parked the car behind Canto’s red van in the driveway. When he got inside the house, a man put a gun to his side and said, “Come on in, boy.” Another man pushed him to the ground, kicked him, and tied his hands behind his back with an extension cord.

Someone asked him where their money was, and said, “Go do something.” He could not see the faces of these people, but he could hear their footsteps in the house and he heard someone go out the back door. Defendant decided his only chance to survive was for him also to go out the back door, so he loosened his hands from the extension cord behind his back and started to run. He heard gunshots, and thought the people inside the house were shooting at him.

As he was going down the back steps a man who was taller than he and who had long hair grabbed him from the front, “like a bear hug.” A second man grabbed him from behind, then reached in and put a gun between defendant and the first man, who was still holding him in the bear hug. The second man then shot defendant in the right leg and defendant fell to the ground. The first man also cried out that he had been shot. Defendant assumed that he and the first man had been hit by the same bullet.

The second man then pointed the gun at defendant and tried to shoot him in the face but the gun jammed and the man threw the gun to the ground. Both the first and second man then ran around one side of the house. Defendant ran in the opposite direction around the other side of the house and through the front gate to his car. He drove to his girlfriend’s house in Inglewood and stayed there for two or three days. From there he went to Greg’s house in Pasadena and stayed there until he was healed, about three weeks. Defendant testified he spent time at Mills’s apartment before his arrest on September 16, 1994.

He feared returning to his own apartment; he continued to conduct his drug business from Mills’s apartment. Defendant stated that Mills sold marijuana for him and that he used her apartment to store cocaine. He denied wearing makeup or a wig. He explained that the mascara in his pocket at his arrest must have gotten there when Mills gave him some marijuana and he put it in his pocket. He denied telling Mills about the events at Canto’s house.

Defendant acknowledged that he did have earlier plans to go to Atlanta to visit a girlfriend but changed his plans before August 9, 1994, and at the time of trial he did not know how to contact his Atlanta girlfriend. He testified that he had also lost contact with the girlfriend in Inglewood, and that Greg died in 1994 or 1995 while defendant was awaiting trial.

He further acknowledged that he gave false identities to police both when he was arrested for drugs in 1988 and when he was arrested for Allen’s murder on September 16, 1994, and that he gave false information on an employment application, on his California driver’s license application, and on his rental application. B. Penalty Phase 1. Prosecution Evidence At the penalty phase, Alicia Allen’s mother, Pamela Gunn, testified to the close relationship she had with Allen, her only child, whom she raised alone. She related how Allen was artistic, and had done well in high school where she was on the debate team.

She was a cheerleader and a dancer. Allen had attended some college, but subsequently left school and left home. Gunn testified that on Mother’s Day 1994, just months before the murders, Allen had showed off a diamond engagement ring and spoken of plans to marry Canto and return to college in the fall. Gunn described how she learned of the murder, and of the emotional and financial costs involved in planning and attending the funeral.

She presented a photograph of Allen’s gravesite and testified about the emotional toll she and her family experienced at the mortuary in viewing Allen’s naked body and seeing two gaping bullet wounds to the head, broken fingernails, and an “ugly” autopsy incision. She testified about the impact Allen’s death had had on her. Allen’s grandmother also testified about the impact of Allen’s death and her viewing of the body.

On cross-examination, the defense established that Gunn had not had direct contact with Allen for over a year, that she had not known where Allen lived, and that Allen was working at minimum-wage jobs. 2. Defense Evidence Defendant’s community college track coach testified that he was a hard worker and a quiet, respectful student who had the potential to be a world-class athlete. An employee at Edwards Air Force Base testified that while defendant was an inmate at the Boron Federal Prison for his 1988 drug possession conviction, she supervised his work on projects at the airbase.

He and other inmates were bused to the airbase from the prison grounds. She supervised his work for eight or nine months, during which time she found him to be quiet when spoken to, and an average and obedient worker. He treated her with respect. A deputy attorney general who knew defendant through a church-sponsored prison ministry fellowship testified defendant stayed in his home for two weeks during his federal prison furlough. He found defendant to be respectful and interested in sports.

Finally, Canto’s ex-wife testified she had seen Canto with $6,000 in cash in a brown paper bag and she could not account for the source of the money. She had never seen Canto with illegal drugs. II. DISCUSSION A. Jury Selection Issues Defendant claims the trial court erred in granting four of the prosecution’s challenges for cause.

He also claims the court excused a qualified juror and, in conducting assertedly inadequate voir dire, restricted his ability to determine the qualification of three other jurors. “The trial court may excuse for cause a prospective juror whose views on the death penalty would prevent or substantially impair the performance of that juror’s duties.” (People v. Smith (2003) 30 Cal.4th 581, 601 [134 Cal.Rptr.2d 1, 68 P.3d 302]; see also Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844].) On appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, and we accept as binding the trial court’s determination as to a prospective juror’s true state of mind when that juror has made conflicting or ambiguous statements. (Smith, at p. 602.) Because the record supports the trial court’s findings that Prospective Juror U.S.’s personal feelings would prevent her from being able to impose the death penalty, and because the voir dire of Prospective Jurors J.R., D.B., and J.P. was not inadequate, defendant’s claims of error have no merit.

In the 17-page written questionnaire, Prospective Juror L.S. indicated she would “probably get cold feet” and would not want the personal responsibility of deciding to actually impose the death penalty.

During voir dire, she stated that she would have to be convinced “that there was [sic] no kind of mitigating circumstances at all before I could see being responsible for putting somebody to death.” The court explained, “The law does not say in order to come back with death there be no mitigating circumstances,” and “[when] the aggravating factors so substantially outweigh the mitigating then the juror should vote for death and not otherwise.” When asked, “Could you follow that instruction or are you going to want something else to use, some different standard of your own,” L.S. replied, “It is like I said.

It would have to be overwhelmingly is how I feel about it.

Overwhelmingly aggravating circumstances.” Defendant argues the trial court should have ceased voir dire when L.S. said she did not like the death penalty but could impose it under “overwhelmingly aggravating circumstances.” He argues the following colloquy should not have occurred: “Court: I want to know within your heart of hearts in your case, not some other case, this case, if you could actually give both sides a fair call on penalty if we have a penalty phase or are you going to set an unrealistic standard for yourself that could never be met? “L.S.: I don’t think I can put somebody to death, no. “Court: Both sides are entitled to have 12 jurors that, if necessary, can make that choice and make the choice based on the law that I outlined and make it fair for the defendant, fair for the prosecution, the sides they represent here.

Do you believe you are a juror who can do that or do you think that your abilities are substantially impaired by your feelings about the death penalty? “L.S.: Really I don’t think that I could vote for the death penalty, no ... . Not knowing any circumstances about the case or like you say mitigating and aggravating, I am 80 or 90 percent sure I couldn’t do it.” Defendant did not object to this voir dire and therefore has forfeited the claim for appeal. (People v. Benavides (2005) 35 Cal.4th 69, 88 [24 Cal.Rptr.3d 507, 105 P.3d 1099].) In any event, the claim has no merit.

Contrary to defendant’s assertions, the additional questioning was not misleading or confusing. These questions aided in determining whether L.S. harbored any bias that would prevent her from following the instructions to consider aggravating and mitigating evidence (People v. Cash (2002) 28 Cal.4th 703, 721-722 [122 Cal.Rptr.2d 545, 50 P.3d 332]), and allowed the court to identify a juror whose death penalty views would prevent or substantially impair the performance of her duties as a juror (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47 [17 Cal.Rptr.3d 710, 96 P.3d 30]).

L.S.’s answers also demonstrated her inability and unwillingness to engage in the weighing process necessary to determine whether death was the appropriate penalty, and the trial court reasonably could find substantial impairment in L.S.’s abilities to perform duties as a juror. (See People v. Stewart (2004) 33 Cal.4th 425, 447 [15 Cal.Rptr.3d 656, 93 P.3d 271]; People v. Griffin (2004) 33 Cal.4th 536, 558-562 [15 Cal.Rptr.3d 743, 93 P.3d 344].) We reject defendant’s assertion that Prospective Juror L.S. was improperly excused.

Defendant’s challenge to the adequacy of the voir dire of Prospective Jurors J.R., D.B., and J.P. also lacks merit. J.R. indicated in the questionnaire that he was not comfortable with the death penalty and that he would “always vote for life imprisonment without possibility of parole and reject the death penalty, regardless of the evidence presented at trial.” During voir dire by the court he said that he had held these beliefs about the death penalty for a long time.

D.B. stated in the questionnaire that he believed the death penalty was appropriate in some circumstances and should be used as a last resort, but also stated he would always vote for life imprisonment, and that the responsibility of making such a decision was more than he could handle. Brief voir dire by the court revealed that D.B. would always vote for life without possibility of parole. J.P. gave conflicting and confusing answers to questions posed in both the questionnaire and voir dire, and the court determined she was not capable of understanding the basic concepts involved in a death penalty case.

Defendant claims the court did not ask enough questions to resolve the apparent ambiguities shown in these jurors’ answers. We disagree. “ ‘[W]e pay due deference to the trial court, which was in a position to actually observe and listen to the prospective jurors.

Voir dire sometimes fails to elicit an unmistakably clear answer from the juror, and there will be times when “the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [Tjhis is why deference must be paid to the trial judge who sees and hears tire juror.” ’ ” (People v. Griffin, supra, 33 Cal.4th at p. 559.) Such findings by the trial court are generally binding if the prospective juror’s responses are equivocal or conflicting. (Id. at p. 558; People v.

Ashmus (1991) 54 Cal.3d 932, 962 [2 Cal.Rptr.2d 112, 820 P.2d 214].) The record supports the court’s findings that each of these prospective jurors lacked either the ability or the willingness to engage in the performance of duties as jurors in a death penalty case, and we defer to its decision that no further questions were necessary. B. Guilt Phase Issues 1. Evidentiary Rulings a. Admission of Evidence i. Videotape of victim Defendant claims the court committed error in admitting a videotape of Alicia Allen taken two weeks before her murder. He renews the objection made at trial pursuant to Evidence Code

section 352 that the tape was more prejudicial than probative. Courts should be cautious in the guilt phase about admitting photographs of murder victims while alive, given the risk that the photograph will merely generate sympathy for the victims. (People v. Osband (1996) 13 Cal.4th 622, 677 [55 Cal.Rptr.2d 26, 919 P.2d 640].) But the possibility that a photograph will generate sympathy does not compel its exclusion if it is otherwise relevant. (People v.

DeSantis (1992) 2 Cal.4th 1198, 1230 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) The decision to admit victim photographs falls within the trial court’s discretion, and an appellate court will not disturb its ruling unless the prejudicial effect of the photographs clearly outweighs their probative value. (People v. Navarette (2003) 30 Cal.4th 458, 495 [133 Cal.Rptr.2d 89, 66 P.3d 1182].) Allen’s mother testified that Allen regularly wore numerous pieces of jewelry that she never took off, including a diamond engagement ring and a high school class ring.

The prosecution played a silent, 40-second-long portion of a videotape taken of Allen at a child’s birthday party two weeks before her death. Her mother identified the engagement ring and several necklaces shown on the videotape, and testified that with the exception of a small “pinky” ring, none of the jewelry shown in the videotape or any other pieces of Allen’s jewelry were ever recovered. Defendant claims the videotape was more prejudicial than probative, and the videotape showing a children’s birthday party was emotionally charged and served to highlight Allen’s “innocent nature.” We disagree.

The videotape was relevant to proving Allen owned and wore jewelry that allegedly was stolen during the course of the murders, and was not made inadmissible, as defendant argues, because the prosecution could have established the same relevant fact by other means. (People v. Navarette, supra, 30 Cal.4th at pp. 495-496.) We have reviewed the videotape and agree with the trial court that although it was taken during the course of a child’s birthday party, it does not engender an emotional reaction but is neutral and unremarkable. The court acted within its discretion in admitting the evidence. ii.

Canto’s preliminary hearing testimony Defendant next claims the court erred in admitting Canto’s preliminary hearing testimony. Because defendant objected only to the deletion of certain portions of Canto’s testimony and not to its admission per se, he failed to preserve this claim for appeal. (Evid. Code, § 353.) In addition, the claim lacks merit. “The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const.[,] art. I, § 15.) That right is not absolute, however.

An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination.” (People v. Cromer (2001) 24 Cal.4th 889, 892 [103 Cal.Rptr.2d 23, 15 P.3d 243].) Such statements are not made inadmissible by the hearsay rule if the cross-examination was made “with an interest and motive similar” to that at the prior proceeding. (Evid. Code, § 1291, subd. (a)(2).) In this case, Canto’s death rendered him unavailable to testify at trial. (Evid.

Code, § 240, subd. (a)(3).) Accordingly, the prosecution introduced an edited version of Canto’s preliminary hearing testimony. (Id., § 1291, subd. (b).) Defendant argues that at the time of the preliminary hearing, counsel did not know of Canto’s illegal drug activities, and consequently he did not have an opportunity to cross-examine with the same interest and motive as he would have, had Canto been available at trial. He asserts that the testimony gave the jury a false and misleading impression of Canto’s credibility and thereby undermined defendant’s right to a fair determination of guilt and penalty.

Defendant cannot now be heard to complain that the defense did not know of Canto’s drug dealing prior to the preliminary hearing; by his own admission at trial, he and Canto had been engaged in drug dealing for some time before August 9, 1994. Moreover, a defendant’s interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code

section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. (People v. Alcala (1992) 4 Cal.4th 742, 784 [15 Cal.Rptr.2d 432, 842 P.2d 1192].) The “ ‘motives need not be identical, only “similar.” ’ ” (People v.

Samayoa (1997) 15 Cal.4th 795, 850 [64 Cal.Rptr.2d 400, 938 P.2d 2].) “Both the United States Supreme Court and this court have concluded that ‘when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 343 [30 Cal.Rptr.3d 513, 114 P.3d 758]; see California v.

Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930].) Defendant’s interest and motive in cross-examining Canto at the preliminary hearing were similar to those at trial: to challenge Canto’s credibility and discredit his account of the shooting. Defense counsel conducted an in-depth cross-examination twice as long as the direct examination, which succeeded in eliciting evidence that challenged Canto’s credibility.

Accordingly, defendant’s opportunity to cross-examine Canto at the preliminary hearing satisfied the confrontation clause, and any objection to the preliminary hearing testimony would have lacked merit. iii. Testimony regarding Canto’s statements Two witnesses testified about statements Canto made after the shootings. Defendant claims the court erred in admitting the evidence. At the preliminary hearing Canto denied being a “loan shark” and described himself as a businessman who fixed and resold cars bought for cash at auction.

Detective Davila of the Gardena Police Department impeached Canto when Davila testified for defendant on direct examination regarding a small portion of a telephonic interview he conducted while Canto was still in the hospital. He testified Canto admitted that the reason he had large quantities of cash at his house was because he was in the illegal “loan shark” business.

On cross-examination of Davila, the prosecution established that Canto initiated the telephonic interview in the hospital by asking a nurse to call the police so he could “set the record straight” and tell the police information regarding his shooting and the murder of Allen, and so he could explain that at all prior police contacts, he had lied when he denied knowing the identity of his shooter.

Over objection that it was beyond the scope of direct examination, Davila then testified about what Canto told him were the events of the evening of August 9, 1994, wherein Canto said that he had lent money to defendant, that defendant had contacted him that afternoon in order to repay the loan, that while driving defendant to and from his apartment in an effort to get the money owed, defendant shot him, that he lied to the police initially when he told them he did not know the identity of the shooter, that he explained “if it took him the rest of his life, he was going to get even and take care of the defendant himself,” but after learning while in the hospital that Allen had been murdered, Canto decided it “was no longer personal” and wanted the police to get involved.

With the exception of his admission that he was a “loan shark,” this was essentially the same evidence Canto testified to at the preliminary hearing. Defendant claims the court erred in admitting the portion of Canto’s hospital interview elicited during cross-examination because that testimony was beyond the scope of direct examination. A witness may be cross-examined on any matter within the scope of direct examination. (Evid. Code, § 773.) “Where part of

an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . .” (M, § 356.) “ ‘In applying Evidence Code

section 356 the courts do not draw narrow lines around the exact subject of inquiry. “In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . .” [Citation.]’ ” (People v.

Zapien (1993) 4 Cal.4th 929, 959 [17 Cal.Rptr.2d 122, 846 P.2d 704].) Further, the jury is entitled to know the context in which the statements on direct examination were made. (People v.

Sanders (1995) 11 Cal.4th 475, 520 [46 Cal.Rptr.2d 751, 905 P.2d 420] [where defense counsel elicited portions of investigative interview with witness, prosecution not foreclosed from inquiring into context of statements on redirect examination of witness and cross-examination of investigator].) Canto’s admission to Davila that he participated in illegal loan shark activity contradicted his preliminary hearing testimony and was placed into evidence by defendant.

The prosecution was entitled to present the entire context in which Canto made the admission, including his explanation of the events of the August 9 shooting, which he asserted arose out of his loan shark activity. The court did not err in allowing Davila to testify to the remainder of Canto’s hospital admission. Defendant further claims these statements elicited on cross-examination of Davila were inadmissible hearsay. By not objecting to admission of the statements as hearsay, defendant failed to preserve the issue for appeal. (People v.

Williams (1997) 16 Cal.4th 635, 681 [66 Cal.Rptr.2d 573, 941 P.2d 752].) Were we to consider the claim on the merits, it would fail. The statements were admissible for the nonhearsay purpose of placing Canto’s statements into context. (People v. Turner (1994) 8 Cal.4th 137, 190 [32 Cal.Rptr.2d 762, 878 P.2d 521].) Over objection, the prosecution called in rebuttal Lyndon Bull, the owner and manager of the World Class Coach Works auto body shop where both defendant and Canto worked.

He testified he had known defendant since high school; that in late 1993 or early 1994, he had given defendant a full-time job for $150 a week “pick[ing] up parts”; that he was training Canto to do repair estimates; and that when defendant eventually failed to show up for work following the shootings his friends and family and coworkers looked for him for nearly a month but did not find him and defendant never called or showed up at work again. Defendant argues, as he did at trial, that this was improper rebuttal evidence.

The decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion. (§ 1093, subd. (d); People v. DeSantis, supra, 2 Cal.4th at p. 1232.) “ ‘[P]roper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime.

It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.’” (People v. Young (2005) 34 Cal.4th 1149, 1199 [24 Cal.Rptr.3d 112, 105 P.3d 487], quoting People v.

Carter (1957) 48 Cal.2d 737, 753-754 [312 P.2d 665].) The rebuttal testimony of Lyndon Bull as to the limited scope of defendant’s job at the auto body shop properly challenged defendant’s testimony that he was “basically [the] assistant manager” of the shop, that he “helped run the place, do estimates, make sure that everybody gets paid, write the checks and pay invoices,” and that he was gone from work starting August 1, 1994, because he was on vacation. We find no abuse of discretion in permitting this testimony.

In addition, over a hearsay objection, Bull testified that three or four weeks after the shooting, Canto came into the auto body shop and said defendant had “shot him up.” Defendant argues this was inadmissible hearsay testimony. We agree. Hearsay evidence 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).) Unless an exception applies, hearsay evidence is inadmissible. (Id., subd. (b).) Canto’s statement to Bull was an out-of-court statement, and respondent does not suggest that it comes within any exception or that it was offered for any purpose other than to prove defendant shot Canto. The admission, therefore, was error. The error, however, was harmless. We have held the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error under the “reasonable probability” standard of People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]. (People v. Marks (2003) 31 Cal.4th 197, 226-227 [2 Cal.Rptr.3d 252, 72 P.3d 1222].) Because Bull merely repeated statements similar to Canto’s preliminary hearing testimony, it is not reasonably probable that the error affected the outcome of the trial. Indeed, assuming defendant has preserved a claim of federal constitutional error, and the error did implicate federal constitutional rights, we would find the error harmless beyond a reasonable doubt. b. Exclusion of Evidence i.

Evidence of Canto’s drug dealing and third party culpability Before trial the prosecution moved in limine to exclude 23 items of evidence proffered by defendant, which included, inter alia, two separate but related areas of evidence of Canto’s drug dealing: (1) circumstantial evidence of Canto’s alleged drug-related activities as witnessed by his neighbors and family, and evidence of alleged drug-related items found in his home and in his possession at the time of his murder in Chicago in 1995; and (2) the statements of Melvin Walford and Cleveland James attesting to their involvement in Canto’s drug dealing business and the details surrounding Canto’s murder.

Defendant had sought to introduce this evidence to challenge Canto’s credibility by establishing Canto’s status as a drug dealer, and to support his theory of third party culpability in the murders of Allen and her fetus. The court excluded all of this proffered evidence. Defendant now claims that in doing so, the court abused its discretion and violated various of his constitutional rights. We conclude that the court abused its discretion in excluding some of the evidence but find no prejudice. The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid.

Code, §§ 210, 350), “and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)” (People v. Heard (2003) 31 Cal.4th 946, 973 [4 Cal.Rptr.3d 131, 75 P.3d 53].) “The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive.” (People v.

Garceau (1993) 6 Cal.4th 140, 111 [24 Cal.Rptr.2d 664, 862 P.2d 664].) In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to: a witness’s character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; his attitude toward the action in which he testifies or toward the giving of testimony; and his admission of untruthfulness. (Evid.

Code, § 780.) Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code

section 352. (See People v. Wheeler (1992) 4 Cal.4th 284, 295-296 [14 Cal.Rptr.2d 418, 841 P.2d 938].) Possession of drugs for sale, which involves the intent to corrupt others, is conduct involving moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317 [211 Cal.Rptr. 719, 696 P.2d 111].) The trial court has broad discretion in determining the relevance of evidence. (See People v. Crittenden (1994) 9 Cal.4th 83, 132 [36 Cal.Rptr.2d 474, 885 P.2d 887].) We review for abuse of discretion a trial court’s rulings on the admissibility of evidence. (People v. Heard, supra, 31 Cal.4th at p. 972; People v.

Rowland (1992) 4 Cal.4th 238, 264 [14 Cal.Rptr.2d 377, 841 P.2d 897].) The proffered circumstantial evidence of Canto’s alleged drug dealing included the following: Canto’s ex-wife would have testified that she was married to Canto for 10 years and that the marriage ended nearly two years before his death, that he never held a “regular job,” had “a lot of money,” and traveled extensively, and she was of the opinion that he was a drug dealer; neighbors would have testified to a large amount of foot traffic at Canto’s house at all hours of the day and night; Canto’s coworker would have testified that he accompanied Canto when Canto drove to two homes and went inside for a short period of time, from which the coworker assumed Canto was delivering drugs; the coworker also would have testified he saw Canto carrying a concealed weapon and heard him admit to having “shot some Bloods in Chicago”; and police officers would have testified that the search of Canto’s house following the murders revealed three bulletproof vests and a large amount of ammunition.

The proffered statements of Walford and James, then awaiting trial in Chicago for Canto’s murder, would have included contentions that they had been employed by Canto for several years to transport large quantities of cocaine between Los Angeles and Chicago, and that they shot and stabbed Canto, causing his death, after a disagreement during a drug deal in November 1995.

The trial court considered the admissibility of all of this evidence in a lengthy pretrial hearing on the motion in limine, and revisited the admissibility of the statements of Walford and James at the end of the prosecution’s case-in-chief and again during defendant’s case.

When first considering the admissibility of the circumstantial evidence during the hearing on the motion, the court recognized that it knew very little about the case to come; indeed, it did not know of defendant’s contention that he and Canto were dealing drugs, or of the statements of Walford and James and details of Canto’s murder during the drug deal in Chicago. The court ruled the circumstantial evidence irrelevant, and stated, “clearly in the guilt phase the court sees no relevance of the defense’s desire to see Mr.

Canto as a narcotic dealer and to suggest that somebody else killed him or somebody else tried to kill him [and Allen] other than the defendant. [1] That is far from being relevant third party culpability evidence. It simply seeks to cast doubt upon Mr.

Canto and to, I assume, imply to the jury that others may have had reasons to want a drug dealer dead, all of which is absolutely speculative.” The court also stated, “if, however, the defendant testifies that these matters become relevant based upon his testimony or any other defense witness, we will revisit the issue.” Later, during the hearing on the motion, the court learned of and considered the admissibility of the proffered statements of Walford and James.

The court concluded this did provide more substantial evidence of Canto’s drug dealing and therefore did have a bearing on Canto’s credibility, but the statements were hearsay, inadmissible as third party culpability evidence, substantially more prejudicial than probative, and therefore inadmissible. During trial the court reconsidered the admissibility of the statements of Walford and James regarding Canto’s murder.

Defendant made an offer of proof that he would testify to his and Canto’s drug dealing business and the details of the drug deal of the night of the murders on August 9, 1994, and argued the statements of Walford and James were relevant to challenge Canto’s credibility and support defendant’s contention that Canto was a drug dealer, as would the contention that Canto carried a gun and was believed by his coworkers to be a drug dealer.

The court issued a written ruling, again finding the evidence of Canto’s murder irrelevant, and the statements of Walford and James to be hearsay and substantially prejudicial and to be excluded pursuant to Evidence Code

section 352, and inadmissible as third party culpability evidence pursuant to People v. Hall (1986) 41 Cal.3d 826, 834 [226 Cal.Rptr. 112, 718 P.2d 99]. We conclude that defendant’s offer of proof that he would testify about Canto’s drug dealing provided the foundation for the relevancy of the circumstantial evidence that had been missing when the court initially ruled on its admissibility. The circumstantial evidence suggesting Canto was a drug dealer was no longer speculative and was relevant and admissible to challenge Canto’s credibility. (See People v.

Wheeler, supra, 4 Cal.4th at pp. 295-296.) The court should have admitted the circumstantial evidence at this point.

However, the jury heard substantial other evidence challenging Canto’s credibility: police officers testified that they found several boxes each of plastic wrap and fabric softener in Canto’s house on West Marine Avenue, items often used to disguise distinctive odors in the packaging and transportation of large amounts of marijuana; Canto lied to the Gardena police when he said he did not know who shot him; he gave a false name on the rental application for the house on West Marine Avenue; he lied to the Chicago police before he died; he admitted he harbored bias and animosity toward defendant and wanted to “take care of business” and kill defendant himself; and defendant himself testified in detail to Canto’s involvement in drug dealing.

The exclusion of the circumstantial evidence of Canto’s drug dealing did not keep the jury from learning facts from which it could assess Canto’s character and credibility. No prejudice resulted from the court’s decision to exclude the circumstantial evidence of Canto’s drug dealing. We find no error in excluding the statements of Walford and James. “To be admissible, the third party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.

At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. As this court observed in [People v.] Mendez [(1924) 193 Cal. 39 [223 P. 65]], evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v.

Hall, supra, 41 Cal.3d at p. 833.) “[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (§ 352).” (People v. Hall, supra, 41 Cal.3d at p. 834.) Evidence regarding Canto’s murder in Chicago would not raise a reasonable doubt as to defendant’s culpability for the murder of Allen and her fetus.

The prosecution established that defendant shot Canto, that defendant was in the house when Allen and her fetus were murdered, and that the same gun was used to shoot Canto and Allen. Defendant himself testified that he was dealing drugs with Canto and was in Canto’s house when Allen was murdered. Neither party presented evidence, either direct or circumstantial, that placed Walford or James in Canto’s house at any time.

The fact that Canto was involved in drug dealing and was himself subsequently murdered by Walford and James in Chicago in November 1995, in the course of drug dealing, neither demonstrated that Walford or James was involved in the killings in Canto’s house in August 1994, nor disproved the prosecution’s theory that it was defendant who shot Allen. The court did not abuse its discretion in excluding these statements. ii.

Postmurder burglary of Canto’s house The court also excluded evidence that seven weeks after the Allen murders, police caught and prevented burglars from taking furniture from Canto’s house on West Marine Avenue, and that when notified of the attempted burglary of his home, Canto, who had only briefly returned to the house since being released from the hospital, told the police he was not interested in anything in the house and would not press charges.

This evidence, defendant argues, challenged the critical element of the prosecution’s case for robbery: that Allen’s missing jewelry was taken at the time of the murders. Several rings Allen always wore were missing when she was found dead. Some of her fingernails were broken, suggesting she engaged in a struggle in the house before she died. The prosecution argued that it was reasonable to conclude that the killer took the missing rings.

Defendant points out there was no inventory taken of the contents of the house after the murders, and argues that the proffered evidence of the postmurder burglary attempt was relevant to raise the possibility that the rings were not taken at the time of the murders, but were left in the house and later taken during the burglary. The trial court properly excluded this evidence. The fact of an unsuccessful attempt to burglarize Canto’s abandoned house weeks after the murders does not alone raise a reasonable inference that the missing rings were left in the house following the murders.

Moreover, the court had discretion to exclude the evidence under Evidence Code

section 352 even if we assume it had some marginal relevance. Even if we were to find the court abused its discretion in excluding any or all of the proffered exculpatory evidence, including the statements of Walford and James and the prior burglary attempt, defendant has failed to establish a reasonable probability of a more favorable outcome in the absence of the error. At most, the additional evidence the jury would have heard was of marginal value. Indeed, for these reasons, we would find any error harmless beyond a reasonable doubt. (Chapman v.

California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].) Defendant also argues the court impermissibly “conditioned” the admissibility of this proffered evidence on his testifying. Because he failed to raise this objection at trial (Evid. Code, § 354; People v. Valdez (2004) 32 Cal.4th 73, 108 [8 Cal.Rptr.3d 271, 82 P.3d 296]), defendant forfeited this argument on appeal. Moreover, the claim is without merit. The court did not suggest that the proffered evidence would become admissible only if defendant testified.

Rather, the court indicated that as offered it was irrelevant, but if defendant offered other evidence, such as his own testimony, demonstrating Canto was a drug dealer, the court would revisit the admissibility and relevance of the proffered evidence. 2.

Alleged Prosecutorial Misconduct Defendant contends the prosecutor committed misconduct in a number of respects. “To constitute a violation of the federal Constitution, prosecutorial misconduct must ‘ “so infectf] the trial with unfairness as to make the resulting conviction a denial of due process.” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” (People v.

Benavides, supra, 35 Cal.4th at p. 108.) After the preliminary hearing but before Canto’s death, the prosecution filed a “Motion for Hearing To Determine Conflict of Interest” that raised a question whether a conflict of interest existed between defendant and his counsel, a deputy in the Los Angeles County Public Defender’s Office. The prosecution stated that the public defender’s office previously represented prosecution witness Canto. Defense counsel indicated that her office had evaluated the issue and concluded that there was no conflict.

Court and counsel questioned whether the existence of a conflict was a matter of law or fact and whether that determination should be made by court or counsel, and the court scheduled a hearing on those issues. Before the hearing was held, however, Canto died. The court determined his death rendered moot the question of whether a conflict existed, and, without objection, took the prosecution’s motion off calendar. Counsel continued to represent defendant throughout the guilt and penalty phases of trial; defendant represented himself in propria persona at the motion for new trial.

Defendant characterizes the filing of the “Motion for Hearing To Determine Conflict of Interest” as prosecutorial misconduct, claiming the motion “sowed the seeds of distrust in appellant’s mind that his counsel was representing interests in conflict with appellant’s own and that counsel was not using her best efforts on his behalf,” and “created an atmosphere of mistrust that ultimately resulted in the breakdown of the attorney-client relationship,” all in violation of various constitutional rights. Assuming for argument the issue was preserved, it is meritless. The prosecution had the right to protect itself.

Whether a conflict of interest exists such that a defendant should have a different attorney is a very sensitive matter. The prosecution could legitimately be concerned that if the court had not examined the question, any conviction it received might have been doomed to reversal on appeal even before the trial began. (See, e.g., People v. Mroczko (1983) 35 Cal.3d 86 [197 Cal.Rptr. 52, 672 P.2d 835].) We see no impropriety in the prosecution’s cautiously seeking a determination before trial whether a conflict existed rather than waiting for a defense challenge to a conviction after trial.

Moreover, the record does not suggest that defendant mistrusted counsel due to the prosecutor’s conduct or that counsel failed to represent defendant adequately. Defendant did not reveal on the record the reason he chose to represent himself following the penalty phase, and on appeal he acknowledges that counsel did not have a conflict of interest. The trial court stated at the hearing on the motion for new trial that counsel “did everything she could throughout the trial to try to convince me to allow Mr. Canto’s earlier statements to be impeached by his alleged drug dealing and all manner of things.

She took a position contrary to Mr. Canto. She was not afraid to do so. She urged me to find that he was a dope-dealing criminal and a liar, et cetera. I mean, everything that you would want your advocate to do, she did .... Her conduct at this trial belies any suggestion that she felt constrained or was constrained in any way. Just the opposite.

She went after Canto like an attack dog, and I don’t mean that in an uncomplimentary sense.” Defendant next asserts that the prosecution caused three potential witnesses to Canto’s murder in Chicago to change their minds about testifying on defendant’s behalf, and thereby interfered with his right to compulsory process in violation of various constitutional rights. Prosecutorial intimidation of, or interference with, defense witnesses violates the Sixth Amendment right to compel the attendance of witnesses and the Fourteenth Amendment right to due process. (People v.

Coffman and Marlow, supra, 34 Cal.4th at p. 52; People v.

Mincey (1992) 2 Cal.4th 408, 460 [6 Cal.Rptr.2d 822, 827 P.2d 388]; In re Martin (1987) 44 Cal.3d 1, 29-30 [241 Cal.Rptr. 263, 744 P.2d 374].) Defendant bears the burden of demonstrating at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable; that the prosecution engaged in activity that was entirely unnecessary to the proper performance of its duties and of such a character as to transform a defense witness from a willing witness to one who would refuse to testify; and a causal link between that misconduct and his inability to present witnesses on his own behalf. (In re Martin, supra, at pp. 31-32.) He has not met this burden.

Before trial, Detective Dempsey of the Riverdale, Illinois, police department cooperated with the defense and agreed to testify to the statements made by Walford that he killed Canto because Canto was a cheating drug dealer. In an effort to obtain Walford’s and James’s blood samples the prosecutor sent a fax to a state attorney’s office in Illinois seeking the names and addresses of their attorneys. The fax read in part: “In The People versus Harris, the defense indicated in their opening statement that the defendant will testify and blame the 1994 Los Angeles crime on Mr. James and Mr. Walford.

He will testify that in arriving at the scene, he saw the two exiting the house, the crime already completed.

They finished in Chicago in 1995 what they started in Los Angeles in ’94.[] [][] The attorneys [for Walford and James] may wish to cooperate to avoid having their clients implicated, extradited, and prosecuted for capital murder in the state of California.'” (Italics added.) Defense counsel stated that just before the in camera hearing regarding the admissibility of Walford’s statement, she had been contacted by Illinois trial counsel for Walford and codefendant James who, presumably in response to the prosecution’s inquiries, “wanted to know what her intentions were” with regard to their clients.

She further stated that the defense had recently learned the prosecution had telephoned Detective Dempsey, and that Dempsey was now “not sure he would be able to testify.” Defendant argues, as he did below, that by contacting the state attorney’s office in Illinois and Detective Dempsey, the prosecution unconstitutionally impeded his ability to present a defense. We disagree. Defendant’s inability to present this evidence was not due to the witnesses’ willingness or unwillingness to testify, but to the trial court’s rulings excluding the evidence.

Further, the record does not establish that before the prosecution sent the fax to Illinois, either Walford or James had been willing to testify on defendant’s behalf, or, if they were, that the prosecution’s actions negatively influenced Walford or James or Dempsey in their decisions not to testify. Defendant also fails to establish that the evidence that might have been presented would have been both material and favorable to the defense. Even absent Walford’s and James’s statements regarding Canto’s drug dealing, defendant had evidence with which to challenge Canto’s credibility.

By defendant’s own admission, he and Canto were large-scale drug dealers, and defendant was inside Canto’s house when Allen was murdered. The fact that two drug dealers in Chicago later murdered Canto does nothing to suggest that defendant was a victim rather than a perpetrator of this crime. Defendant claims the prosecution engaged in misconduct by offering the evidence that he has claimed in this appeal the court should have excluded and opposing the admission of defense evidence the court did exclude. Defendant failed to object to this alleged misconduct and thus forfeited these claims on appeal. (People v.

Crew (2003) 31 Cal.4th 822, 839 [3 Cal.Rptr.3d 733, 74 P.3d 820].) Moreover, phrasing the claim as one of misconduct adds nothing to the strength of defendant’s evidentiary claims we have already considered. Although offering evidence the prosecutor knows is inadmissible may be misconduct (People v. Scott (1997) 15 Cal.4th 1188, 1218 [65 Cal.Rptr.2d 240, 939 P.2d 354]), the adversarial process generally permits one party to offer evidence, and the other party to object if it wishes, without either party being considered to have committed misconduct.

The trial court simply rules on the admissibility of the evidence, as the court did here. Defendant claims the prosecution engaged in misconduct when, after urging the court to find certain evidence had no probative value, it relied on evidence of Canto’s status as a drug dealer in its guilt phase closing argument. Again, he failed to object to this alleged misconduct and thus forfeited the claim on appeal.

Moreover, contrary to defendant’s argument, the prosecution did not “rely on the fact Canto was a drug dealer to bolster his argument about [defendant’s] motivations to commit the crime.” Rather, the prosecution commented on defendant’s own testimony and stated, “if you want to believe Canto was a drug dealer, that’s even more reason he’s going to have some dope in there worth stealing, and maybe a lot more cash.” The prosecution is given wide latitude during closing argument to make fair comment on the evidence, including reasonable inferences or deductions to be drawn from it. (People v.

Wharton (1991) 53 Cal.3d 522, 567 [280 Cal.Rptr. 631, 809 P.2d 290].) We find no misconduct.

Relying on testimony, largely from defendant himself, that he earned $150 a week plus commissions from the auto body shop, that his July and August 1994 rent checks for $695 each were returned for insufficient fimds, that he was indebted to Canto for $1,500, and that at the time he left the auto body shop he still owed money on a $500 car he had purchased from owner Lyndon Bull, the prosecution argued in closing at the guilt phase of trial that defendant was in debt, needed money, and therefore had the “motive and opportunity to pull a robbery.” Defendant claims this argument constituted misconduct.

Because defendant failed to object or seek an admonition as to this asserted instance of misconduct, and because an admonition would have cured the alleged harm, defendant has forfeited the claim for appeal. (People v. Dennis (1998) 17 Cal.4th 468, 517-518 [71 Cal.Rptr.2d 680, 950 P.2d 1035]; People v. Ochoa (1998) 19 Cal.4th 353, 427-428 [79 Cal.Rptr.2d 408, 966 P.2d 442].) In any event, the claim has no merit.

It is true that “[e]vidence of a defendant’s poverty or indebtedness generally is inadmissible to establish motive to commit robbery or theft, because reliance on poverty alone as evidence of motive is deemed unfair to the defendant, and the probative value of such evidence is considered outweighed by the risk of prejudice.” (People v. Wilson (1992) 3 Cal.4th 926, 939 [13 Cal.Rptr.2d 259, 838 P.2d 1212], italics added.) But here, the evidence was already presented without objection, largely from defendant’s own mouth. The prosecutor merely commented on that evidence, which was proper.

Moreover, evidence of a defendant’s poverty may be admissible to refute a contention that he did not commit the offense because he did not need the money. (People v. Koontz (2002) 27 Cal.4th 1041, 1076 [119 Cal.Rptr.2d 859, 46 P.3d 335].) Such is the case here. Defendant testified on direct examination that he was not having financial difficulties in the summer of 1994. He testified at length to the thousands of dollars in profits he earned dealing drugs, and stated that “between his various activities” his income would fluctuate from week to week.

He acknowledged that his rent checks bounced but explained it was due to his and his roommate’s negligence in depositing paychecks and not because of an actual lack of funds on his part. The prosecution properly refuted defendant’s assertion that he was not in financial need at the time of the crimes and the inference that he had no financial motive to commit robbery. 3. Alleged Judicial Bias Defendant claims the trial court harbored a bias against him. He asserts the bias was demonstrated in several allegedly erroneous evidentiary rulings and in inappropriate comments and conduct by the court.

In particular, he claims the court exhibited bias against him when it made direct statements of disbelief of defendant’s case; interjected its own objection during the cross-examination of a police officer regarding a possible unidentified witness; interjected its own objection during cross-examination of a police officer regarding the bullets found in Canto’s apartment; made disparaging remarks to defense counsel during cross-examination of the evidence technician; interjected its own objection during cross-examination of the fingerprint technician regarding prints on the gun and the gathering of blood evidence; and conducted its own cross-examination of defendant.

Defendant challenged only the court’s interruption of the cross-examination of the evidence technician regarding possible fingerprints on the gun, but he did not object to any of the other judicial interruptions or resulting evidentiary rulings, or to his cross-examination by the court. Although defendant failed to object to the allegedly improper acts on the grounds of judicial bias or seek the judge’s recusal (see People v. Snow (2003) 30 Cal.4th 43, 78 [132 Cal.Rptr.2d 271, 65 P.3d 749]; People v. Seaton (2001) 26 Cal.4th 598, 698 [110 Cal.Rptr.2d 441, 28 P.3d 175]; People v.

Hines (1997) 15 Cal.4th 997, 1041 [64 Cal.Rptr.2d 594, 938 P.2d 388]; People v. Wright (1990) 52 Cal.3d 367, 411 [276 Cal.Rptr. 731, 802 P.2d 221]; Code Civ. Proc., § 170.1, subds. (a)(6)(C), (c)), we need not decide whether defendant has forfeited this claim because it lacks merit. A review of each complained-of act by the trial court reveals no evidence the trial judge was biased against defendant. Although “the trial court has both the duty and the discretion to control the conduct of the trial” (People v. Snow, supra, 30 Cal.4th 43; see People v.

Fudge (1994) 7 Cal.4th 1075, 1108 [31 Cal.Rptr.2d 321, 875 P.2d 36]), “the Due Process Clause clearly requires a ‘fair trial in a fair tribunal,’ Withrow v. Larkin, 421 U.S. 35, 46 [43 L.Ed.2d 712, 95 S.Ct. 1456, 1464] (1975), before a judge with no actual bias against the defendant or interest in the outcome of his particular case. See, e.g., Aetna [Life Ins. Co. v. Lavoie (1986) 475 U.S. 813, 821-822 [89 L.Ed.2d 823, 106 S.Ct. 1580]; Tumey [v. Ohio (1927) 273 U.S. 510, 523 [71 L.Ed. 749].)” (Bracy v.

Gramley (1997) 520 U.S. 899, 904-905 [138 L.Ed.2d 97, 117 S.Ct. 1793].) The role of a reviewing court “is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. (United States v. Pisani (2d Cir. 1985) 773 F.2d 397, 402.)” (People v.

Snow, supra, 30 Cal.4th at p. 78.) In deciding whether a trial court has manifested bias in the presentation of evidence, we have said that such a violation occurs only where the judge “ ‘officiously and unnecessarily usurp[ed] the duties of the prosecutor . . . and in so doing create[d] the impression that he [was] allying himself with the prosecution.’ ” (People v. Clark (1992) 3 Cal.4th 41, 143 [10 Cal.Rptr.2d 554, 833 P.2d 561].) This principle was not violated here.

At a midtrial hearing out of the presence of the jury regarding the admissibility of evidence of Canto’s murder in Chicago, the court stated, “What is giving me a little bit of pause is defendant is arrested at time one, makes no reference to this elaborate offer, then Mr. Canto dies, and my cynical self tells me that what happens is once Mr. Canto dies and defendant is provided with the details of that incident lo and behold—and I’d bet my right arm on it—for the first time the defendant is now talking about bad guys from Chicago. ...

It is almost too good to be true for the defendant.” And “[I] would be mighty curious if I could look into your mind and that of Mr. Harris’s as to when this defense arose, when the facts arose that jibe so neatly with the statement of two arrestees in Chicago.” The court did not, as defendant argues, exhibit bias in these statements, but simply commented on aspects of the evidence out of the presence of the jury. This falls far short of “betray[ing] a bias against defense counsel.” (People v.

Wright, supra, 52 Cal.3d at p. 411.) Officer King, one of the first police officers on the scene at Canto’s house, testified to having interviewed several of the eyewitnesses, including a man who had flagged him down at the crime scene. An unidentified woman accompanied that man. On cross-examination, defense counsel asked the officer if he had seen any other officers interviewing the eyewitness or the unidentified woman. The court interrupted on its own motion and prevented the officer from answering the question, stating the information sought was irrelevant.

Counsel explained she did not intend to call as witnesses any of the other officers or the eyewitness or the unidentified woman, and the court sustained its own objection. In curbing vague questions about unknown persons, the court did not ally itself with the prosecution but rather exercised reasonable control of the trial to avoid irrelevant or unduly prolonged testimony. (People v. Fudge, supra, 7 Cal.4th at p. 1108.) The court interrupted the examination of a police officer and challenged the relevancy of questions regarding a gun found in Canto’s home and the number of bullets found in the bedroom dresser.

Again, defendant fails to show this evidences judicial bias against defendant; the court challenged questions posed to this witness by both the prosecution and defense. The court interrupted defendant’s cross-examination of the prosecution’s evidence technician. Defense counsel attempted to ask her if fingerprints could have been found on the magazine inside the gun discovered in the driveway of Canto’s home. Over defense’s argument that the questions were relevant, the court declared them to be a “waste of time” because the technician had already testified that no fingerprints had been found on the gun.

Later, after the technician testified she had “collected one solid swatch from the stain” in the driveway, defense counsel asked if the technician made an effort to collect the “entire bloodstain.” The court declared the question to be “meaningless” because “I don’t know how anyone could know if they were successful in obtaining an entire stain off of the driveway.” In so ruling, the court properly exercised its discretion to expedite the examination of witnesses by curbing repetitious questioning.

Nor, as defendant contends, did the court exhibit a hostile or rancorous attitude toward defendant when it asked defense counsel to “move on” when she attempted again to elicit information regarding the ammunition found in Canto’s house. Finally, defendant asserts the court displayed bias against him when the court itself asked the following questions of defendant, without objection, after the prosecution’s cross-examination: “Court: When you were in the house, you say you heard a gun go off?

Who did you figure was being shot? “Defendant: I thought I was being shot at. “Court: At some point did it dawn on you that perhaps somebody else had been shot in the house? “Defendant: No. “Court: Never did? “Defendant: No. “Court: Did you think that Mr. Canto might be in there? “Defendant: Yes, I figured it was a possibility he was in there. “Court: You didn’t see him, though? “Defendant: No. “Court: Did you think the young lady might be in there? “Defendant: No, because I haven’t seen her.

I didn’t see her earlier when I was there. “Court: You didn’t think she was home? “Defendant: No, I didn’t. “Court: Did you ever call the house later on to see if anybody got killed? “Defendant: No, I didn’t. “Court: Why not? “Defendant: Just never crossed my mind. “Court: Didn’t? “Defendant: No. “Court: Weren’t you curious? “Defendant: I was more distraught. “Court: In the next couple of days did you ever call the house or try to contact Mr.

Canto? “Defendant: Like I said, I believe it was the next day that I read the newspaper. “Court: You said two days later. “Defendant: I believe it was either that day or the next day. “Court: It wouldn’t be in the next morning’s paper since it happened so late. “Defendant: I couldn’t say for sure. I couldn’t say what day it was. “Court: You never called to find out what happened? “Defendant: No. “Court: Never did? “Defendant: No. “Court: You were ignorant of it until you read it in the paper? “Defendant: Yes.”

(20) Evidence Code

section 775 “ ‘ “confers upon the trial judge the power, discretion and affirmative duty . . . [to] participate in the examination of witnesses whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.” ’ ([People v.

Carlucci (1979) 23 Cal.3d 249,] 256 [152 Cal.Rptr. 439], quoting Gitelson, A Trial Judge’s Credo (1966) 7 Santa Clara L.Rev. [at pp.] 13-14.) [][] The constraints on the trial judge’s questioning of witnesses in the presence of a jury are akin to the limitations on the court’s role as commentator. The trial judge’s interrogation ‘must be . . . temperate, nonargumentative, and scrupulously fair. The trial court may not . . . withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate factfinding power.’ (People v.

Rodriguez (1986) 42 Cal.3d 730, 766 [230 Cal.Rptr. 667, 726 P.2d 113].)” (People v. Hawkins (1995) 10 Cal.4th 920, 948 [42 Cal.Rptr.2d 636, 897 P.2d 574].) Defendant argues the court overstepped its bounds with respect to the tone, form, and number of questions posed. However, he did not object to the trial court’s questioning, thus making the claim not cognizable on appeal. (People v. Corrigan (1957) 48 Cal.2d 551, 556 [310 P.2d 953].) Were we to reach the merits, we would not endorse all of the trial court’s questioning quoted above and, indeed, would find some of it inappropriate.

On the facts of this case, however, we find no prejudice. We must assume that jurors followed their instruction not to “disbelieve any witness” or to decide the facts based on anything the court said or did, and to disregard any intimations or suggestions the court may have made regarding the believability of any witness. (CALJIC No. 17.32.) Further, the evidence of guilt was strong and the weaknesses in defendant’s assertions of innocence would have been apparent to the jury even absent the court’s questions.

It is not reasonably probable the jury would have reached a different guilt verdict had the court refrained from asking these questions. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 247].) 4. Instructional Claim Defendant contends the court erred in instructing the jury pursuant to CALJIC Nos. 2.01 and 2.02 regarding the use of circumstantial evidence. He argues that by informing the jury, “if one

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

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

interpretation and reject the unreasonable,” the court permitted the jury to base a finding of guilt on a degree of proof less than beyond a reasonable doubt. We have repeatedly rejected similar claims, and do so again here. (People v. Bradford (

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