THE PEOPLE, Plaintiff and Respondent, v. GLEN CORNWELL, Defendant and Appellant, 37 Cal. 4th 50

Opinion GEORGE, C. J. Defendant Glen Cornwell was charged in the Sacramento County Superior Court with first degree murder (Pen. Code, § 187) for the June 1, 1993 slaying of William Reagan.

Defendant also was charged with robbery (§ 211) and, in connection with both offenses, it was alleged defendant personally used a firearm and that the offenses were serious felonies. (§§ 12022.5, subd. (a), 1192.7, subd. (c)(1).) Defendant additionally was charged with unlawful possession of a firearm. (§ 12021, subd. (a).) A robbery-murder special circumstance was alleged (§ 190.2, subd. (a)(17)(A).) It also was alleged that defendant had suffered a prior serious felony conviction and had served a separate prison term for robbery. (§§ 667, subd. (a), 667.5, subd. (b), 1192.7.) Defendant’s first trial ended in a mistrial when the jury was unable to reach a verdict at the conclusion of the guilt phase of the trial.

A second jury was empanelled and returned a guilty verdict on the murder and robbery charges; the robbery-murder special-circumstance allegation and firearm-use allegations were found to be true. After defendant waived jury trial, the court found defendant guilty of unlawful possession of a firearm and found true the prior conviction and prior-prison-term allegations. At the conclusion of the penalty phase of the trial, the jury returned a verdict of death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety for the reasons set forth below. I. Facts A.

Guilt Phase Evidence The principal participants in the narrative of defendant’s crime are defendant; his girlfriend, Juanita Washington; his friend, Roland Johnson; his acquaintance, security guard Michael Johnson (no relative of Roland’s); Kimberly Scott, owner of Cashland, a check-cashing business in Sacramento; and William Reagan, the victim, who assisted Kimberly Scott in her business and also was romantically involved with her. Several identification witnesses testified, and other witnesses testified on various points.

The principal defense witnesses testified concerning the issue of identification, including possible deficiencies in the eyewitness identification evidence proffered by the prosecution. One witness provided defendant with an alibi. The setting of the crime was the sidewalk in front of Cashland. The business was located on 16th Street between F and G Streets in Sacramento. There was an alley next to the business, and beyond the alley was an empty lot that served as a parking lot. Also nearby, in the general vicinity, was a supermarket located at 23d and F Streets.

The crime was committed at approximately 1:30 p.m. on June 1, 1993. The evidence against defendant, however, reflected preparatory activity on his part beginning on the previous day, May 31, 1993, when he borrowed an automobile, a brown Toyota, belonging to Juanita Washington, his girlfriend. Defendant drove this automobile to the home of his friend, Roland Johnson, a drug dealer.

Defendant asked Johnson for the loan of a handgun, explaining he needed the weapon “to try to make a move on something,” and that he had “eyes,”—statements Johnson interpreted as an announcement that defendant planned a robbery and that he had an accomplice who was an insider at the scene of the robbery. Roland Johnson supplied defendant with a loaded .357 magnum revolver and observed defendant drive away in Washington’s Toyota. According to Washington, defendant departed for work at 7:00 a.m. on June 1, 1993, driving her Toyota.

Washington’s vehicle was parked on the 600 block of 17th Street on that date and was ticketed by a city parking enforcement officer at that location at 3:52 p.m., the ticket noting that the vehicle’s tires had been marked at approximately 1:00 p.m. on that date and that the vehicle had exceeded a two-hour parking limit. William Reagan generally assisted at Cashland by delivering checks to the business’s bank and returning with cash. He performed this task successfully on the morning of June 1, 1993, but his second run of the day ended in his death.

He departed from Cashland at 12:30 p.m. and withdrew $9,500 in cash from the bank at approximately 1:00 p.m. The withdrawal consisted of $4,000 in $100 bills, $1,500 in $50 bills, and $4,000 in $20 bills. He was killed on his return as he walked from his automobile, which was parked behind Cashland, through the alley to the front of the establishment. It was noted at the trial that the first day of the month ordinarily was a busy one for Cashland.

The prosecution theorized that the insider whom defendant mentioned to Roland Johnson was Michael Johnson, a man with whom defendant was acquainted and who was employed as a uniformed security guard at Cashland. Michael Johnson generally worked only on the first day of the month and occasionally accompanied other employees on their bank runs. Usually he was armed, but on the day of the crime he was not. During Reagan’s second bank run on June 1, 1993, Michael Johnson remained at Cashland and was observed pacing back and forth and looking out the front windows of the business.

At approximately 1:30 p.m. on June 1, 1993, Reagan was walking from the alley to the Cashland business carrying his briefcase, his usual means of transporting the business’s cash.

A man whom five witnesses identified as defendant approached him from behind and attempted to wrest the briefcase from his grasp. (Robert Blair’s observations were made from a vantage point across the street from Cashland, Maria Ramos’s from the passenger side of an automobile stopped on 16th Street directly in front of Cashland, Frances Rivers’s from an automobile idling in the alley adjacent to Cashland and again from the automobile as it crossed the parking lot behind Cashland, Susan Erickson’s through a window inside Cashland, and Cassandra Henderson’s from directly in front of Cashland.) When Reagan resisted, defendant produced a weapon and ordered him to drop the briefcase.

When Reagan did not comply, defendant fired the weapon. Reagan fell to the ground, the briefcase still in his grasp. Defendant fired a second time, striking Reagan’s neck, took the briefcase, and ran down the alley next to Cashland, waving the revolver over his head as if signaling. Defendant ran to the rear of Cashland and into the empty lot behind it. Frances Rivers, one of the persons who observed the shooting, drove away from Cashland after the incident and circled back through the lot.

There she came face-to-face with defendant, whom she recognized as the shooter, and witnessed him run away, accompanied by another man. Witnesses who were inside Cashland at the time heard someone yell, “they’re fighting,” then heard gunfire, and crouched on the floor. Scott, the owner of Cashland, heard someone yell, “it’s Bill.” She ran outside and found Reagan lying on his back on the sidewalk, bleeding from his neck. She could see that he was dying. He was killed by a gunshot wound to his neck that was consistent with impact by a bullet fired from a .357 magnum positioned against his neck.

His face and his left hand displayed gunpowder stippling such as would be present if a firearm had been fired at him at short range, but missed. At the scene of the crime, police investigators discovered a bullet and a bullet casing from a .357 magnum revolver. There was evidence defendant was at a supermarket located a few blocks from Cashland at 23d and F Streets at 2:15 p.m. on June 1, 1993. A police search of defendant’s bedroom produced a receipt from the supermarket bearing this date and time.

Sometime between 2:30 and 3:00 p.m. on the day of the crimes, defendant arrived at an auto dismantling business and purchased a used white Camaro, paying for the automobile, which cost $1,400, with $20 bills. The purchase was finalized at 3:39 p.m. Defendant was accompanied by another man who was not identified, but who may have been an accomplice. Between 3:30 and 4:00 p.m. on June 1, 1993, defendant arrived in the Camaro at Roland Johnson’s home. According to Johnson, defendant appeared frightened and agitated. He stated he had used Johnson’s weapon but could not return it because he no longer possessed it.

Defendant paid Johnson $500 in $20 bills for the firearm and for other favors. Defendant reported he had committed a robbery and had been forced to “smoke” the victim. Johnson gave this testimony after receiving certain benefits from law enforcement authorities related to his August 1993 imprisonment for a parole violation. Johnson claimed he began to suffer from a guilty conscience concerning the murder defendant had committed and feared the consequences of his own

part in lending defendant the murder weapon. Johnson contacted law enforcement authorities and supplied them with the foregoing information and, in return for testifying, he received an eight-month reduction of his term of imprisonment for the parole violation as well as immunity from prosecution for any act connected with the charged crimes. Juanita Washington testified concerning events that took place later on the day of the fatal shooting, June 1, 1993. She reported that defendant returned to their home at 5:15 p.m. rather than at his usual hour of 4:00 p.m.

He arrived in a white Camaro she had not seen previously, explaining that his supervisor at work had purchased the automobile for him and that defendant would make periodic payments. Washington was concerned because of “the money situation that we were in.” Washington observed a briefcase in the trunk of the Camaro. Defendant informed her he had left her Toyota downtown because he had worked in the neighborhood that day. He drove her to the vehicle’s location on the 600 block of 17th Street, where, as noted previously, it had been ticketed.

Defendant’s supervisor at his place of employment testified, denying having purchased the Camaro. Another employee, a record keeper, added that defendant failed to report for work on June 1, 1993. Defendant, although he was employed at the time of the crime, had $1.20 in his bank account as of May 21, 1993, had passed three checks with insufficient funds in May 1993, and had at least one overdue bill. The defense presented was one of mistaken identity and alibi.

Although, as noted previously, five prosecution witnesses positively had identified defendant as the perpetrator, four other witnesses who stood in front of or near Cashland and witnessed the crime testified at trial that defendant was not the shooter. (These defense witnesses included Alicia McKee, who had stood immediately in front of Cashland; her sister, Sharlean McKee, who had stood approximately four feet from the victim as he was shot; Marvin Napoleon, whose observations were made from a position 15 feet from the shooting; and Alice Sanchez, who was standing with Napoleon 15 feet from the shooting.) Two of these witnesses, Alicia and Sharlean McKee, had identified someone other than defendant at a live lineup, whereas two others, Marvin Napoleon and Alice Sanchez, had been unable to make a positive identification at the live lineup.

An additional defense witness, Robert Young, a teller at Cashland, had identified someone at the live lineup other than defendant as the perpetrator, but at trial Young testified he was unable to say whether or not defendant was involved. The prosecution impeached these witnesses to varying degrees. For example, Alicia McKee previously had testified she was not certain whether defendant was the assailant. Sharlean McKee testified the defense investigator had shown her a photograph of defendant and had informed her he was not responsible for the shooting.

Marvin Napoleon was a heavy drinker who conceded he had focused on the weapon, not the face of the assailant, during the crime. Alice Sanchez, who also was a heavy drinker, noted the defense investigator had shown her a photograph of defendant, commenting that defendant was innocent. The defense also introduced evidence establishing that one of the prosecution’s identification witnesses, Susan Erickson, was being treated for heroin addiction, was taking methadone at the time of the crime, and was awaiting trial on a robbery charge at the time of her testimony.

In addition, the defense investigator testified that when he showed Erickson a photo lineup that did not include defendant’s photograph, she selected someone other than defendant as the shooter. Erickson qualified her identification with the comment that the man in the photograph merely resembled the shooter. The investigator also denied informing identification witnesses that defendant was innocent. The defense also offered the expert opinion testimony of Dr. Geoffrey Loftus, a professor of psychology and an expert in eyewitness identification. Dr.

Loftus explained that human memory does not operate as a mechanical recording device but instead is constructed from various sources, including information learned after an incident. Loftus asserted that stressful events that occur quickly often are not recalled accurately, especially after the passage of considerable time. He discussed the impact of race on eyewitness identification and further explained that a weapon generally becomes the focus of any observation of a crime.

In addition, defendant produced an alibi witness, Billy Mackey, a person with three prior felony convictions, who testified he had spent the day of June 1, 1993, from 8:00 or 8:30 a.m. until after 2:00 p.m. with defendant at the auto dismantling shop where defendant acquired the Camaro, at a restaurant, and at the witness’s home. According to Mackey, defendant did not have an automobile in his possession during this period. Mackey did not testify at defendant’s first trial, although he was aware of the legal proceedings, but came forward two weeks prior to the retrial.

Michael Johnson, the Cashland security guard, testified that he was barely acquainted with defendant and was not involved in any plan to rob Reagan. B. Penalty Phase Evidence By stipulation, the prosecution presented evidence that in February 1985, defendant was convicted of eight robberies. These eight offenses occurred as separate incidents during a four-month period in 1983. On each occasion, defendant robbed an employee of a commercial establishment at gunpoint. There were no injuries, although in some instances defendant either displayed a firearm or threatened the victims with a firearm.

Defendant was sentenced to prison for these crimes and was released on parole on September 24, 1992, less than a year preceding the murder in the present case. It was stipulated that defendant’s convictions rendered it illegal for him to be in possession of a firearm at the time of the murder. The sole witness to testify for the prosecution at the penalty phase was Robin Reagan, one of the murder victim’s five children.

She offered brief testimony describing the victim’s admirable qualities, the shock she had suffered at the moment she learned of his death, and the sad impact of his absence on his children and grandchildren. Defendant testified in his own behalf at the penalty phase. He explained that his father had left the family when defendant was six years of age. Defendant described a generally happy childhood in a close-knit family. In June 1973, defendant joined the Unites States Navy. He did not see combat during his service, but traveled extensively.

After three years of active service, defendant served in a Navy Reserve unit. Upon his honorable discharge in 1979, he was able to find civil service employment, although he did not stay long at various positions. During his reserve service and extending until 1981, defendant suffered from depression. During his employment with the United States Postal Service, defendant suffered a mental heath crisis. He was diagnosed as suffering from bipolar disorder and was hospitalized on more than one occasion.

Defendant testified that various medications, including lithium, Haldol, Prolixin, and Thorazine were prescribed for him. According to defendant, he suffered continuing stress from his employment, his difficult romantic relationship, and the absence of his family. He conceded that he “probably” committed the eight robberies referred to in the stipulation. He acknowledged his conduct had been “terrible, terrible.” He declared he had not been motivated by the need for money but by his enjoyment of the role of an outlaw, asserting he had given away some of the proceeds of the eight robberies.

He stated he was not taking his prescribed medication at the time of the robberies. Defendant testified he worked while imprisoned for the robbery convictions and also when he was on parole. In June 1993, he had temporary employment as a clerical worker, was employed by a company called Bell Carter Distributing, and also refurbished and sold used motorcycles. Defendant did not believe he was suffering from a mental disease at the time of the murder, and did not want to take the psychotropic medication prescribed for him because of its negative side effects, including mental confusion.

Defendant testified he had no current relationship with the members of his family, including his daughter, who was then 20 years of age. On cross-examination, defendant stated that his recollection of the eight stipulated robberies was impaired. He testified he had been accused of 40 robberies, was tried for 16 of them, and convicted of eight. He also conceded that he recalled that—at a minimum—he at least had displayed a firearm during each of the eight robberies and, by implication, having threatened his robbery victims with death in the event they failed to comply with his demands.

Defendant married Carolyn Cornwell on June 3, 1993 (two days after Reagan was murdered). She testified that she and defendant had a happy relationship and that he worked full time five or six days a week. Deputy Sheriff Raymond Roberts testified that defendant had served as a trusty during his incarceration pending trial and had performed diligently. Crendell Polee, Jr., defendant’s older brother, testified that defendant had been a studious, athletic youth and never was in trouble as a child.

He testified that schizophrenia is “quite common” in the family, that (in his opinion) defendant had exhibited signs of the disease, and that, when Polee last had seen defendant in 1982, defendant exhibited signs of stress and communicated in a rapid, stuttery form of speech.

James Esten, formerly an administrative employee for the California Department of Corrections, described the various levels of confinement within the prison system, the unlikelihood that a prisoner serving a sentence of life without possibility of parole would be housed in any but the most restrictive custody (which Esten described), and the circumstance that such prisoners never can be and never have been paroled.

When defendant arrived at the prison, he had been taking lithium, Mellaril, and Elavil, and Esten explained that during defendant’s incarceration for robbery, his behavior was good and he was a valuable worker. Eston predicted that defendant would make an excellent prisoner, could assist correctional officers in pacifying other inmates, and again would be a valuable worker. Dr. Shawn Johnston, a clinical psychologist, reviewed defendant’s medical records and also met with defendant in order to perform a psychological evaluation. Dr.

Johnston concluded that defendant suffered from a bipolar disorder, as defendant had since the late 1970’s. Dr. Johnston noted that defendant had been prescribed medication for this condition on a number of occasions. Dr. Johnston testified that defendant’s record demonstrated that he had exhibited periods of agitation, pressured speech, “flights of ideas,” and paranoid delusions—symptoms that are characteristic of bipolar disorder. Dr. Johnston described the manic phase of the disease, noting that afflicted persons feel wonderful, enjoying superabundant energy.

At the same time, persons in the manic phase of the disease engage in reckless behavior and suffer from memory disorders. Psychological tests performed by Dr. Johnston on defendant disclosed likely learning disability, psychoneurological deficits or brain damage, confused thinking, agitation, and indications of mania and schizophrenia. Dr. Johnston explained that bipolar disorder impairs the subject’s judgment and, during extreme manic phases, may deprive the subject of the ability to know right from wrong.

On cross-examination he conceded that a person diagnosed with bipolar disorder ordinarily is able to distinguish right from wrong. Dr. Johnston also noted that on the Minnesota Multiphasic Personality Inventory, defendant scored in the third highest range in psychopathic deviance, a score outside the normal range, but the witness predicted that defendant would function well in a highly structured environment such as prison. II. Guilt Phase Claims A.

Wheeler Motion Defendant, who is African-American, contends the prosecutor exercised a peremptory challenge against Juror T., who also is African-American, because of her race, in violation of the federal constitutional guaranty of equal protection of the laws (Batson v. Kentucky (1986) 476 U.S. 79, 84 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson)) and the state constitutional right to a jury drawn from a representative cross-section of the community. (See People v.

Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).) “ ‘Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution. [Citations.]’ ” (People v.

Cleveland (2004) 32 Cal.4th 704, 732 [11 Cal.Rptr.3d 236, 86 P.3d 302].) In a recent decision, the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson v.

California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138, 125 S.Ct. 2410, 2416], fn. omitted (Johnson).) The court went on to explain that “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson, supra, 545 U.S. at p. 170 [162 L.Ed.2d at p. 139].) The defendant having shown membership in a cognizable class, and keeping in mind “ ‘that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate,” ’ ” the defendant “ ‘must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.’ ” {Ibid.) In the present case, as we shall explain, our scrutiny of the record causes us to believe that defendant failed to meet the standard imposed by Batson, supra, 476 U.S. 79, and Johnson, supra, 545 U.S. 162 [162 L.Ed.2d 129].

We note that because we reach this conclusion, we are not obliged to consider the persuasiveness of the prosecutor’s justifications. (People v. Young, supra, 34 Cal.4th at p. 1173; People v.

Farnam (2002) 28 Cal.4th 107, 135 [121 Cal.Rptr.2d 106, 47 P.3d 988]; see also Johnson, supra, 545 U.S. at p. 171 [162 L.Ed.2d at p. 140] [“ ‘It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination’ ”].) Only two African-American persons were included in a venire of 117 persons.

The prosecutor exercised a peremptory challenge against one of them, Juror T; the prosecutor repeatedly passed the other African-American prospective juror, and the individual served on the jury. In her juror questionnaire, Juror T. noted that she had relatives and several close friends who had worked in law enforcement, commented that the criminal justice system seemed to involve more spectacle than substance, that in that system, process is exalted above truth, and that “[t]he law seems to exist to perpetuate its system rather than do justice.

Minorities are not treated the same as whites.” She added that several of her close relatives had been arrested and that her aunt served a prison sentence for homicide. The juror stated that “nearly all” of her close relatives have been subjected to “burglaries, robberies, car theft or break ins” and that she had suffered a burglary and an auto theft.

She expressed the view that the criminal justice system sometimes treats citizens unfairly because of race, offering an example: “The first Rodney King trial where the officers were acquitted seemed to be a blatant miscarriage of justice, because the victim . . . was black.” She wrote that “Blacks, poor people, minorit[ies and] women seem to get harsher treatment than whites, rich people.

I’ve known many studies & research to show this as fact.” On the other hand, she appeared to favor use of the death penalty and consistently acknowledged a juror’s duty to consider the evidence fairly and to follow the law as directed by the court. It was the trial court, not counsel, who conducted the individual voir dire.

During voir dire, the same juror noted that her brother-in-law was a superior court judge in Los Angeles, that other family members or friends were lawyers or were involved in law enforcement, and that she had received some instruction on the basics of criminal law and criminal procedure in connection with her employment. She explained that she believed that the aunt who had served a prison term for homicide had been wrongly convicted.

The court, having posed several questions concerning her aunt’s conviction, asked: “Has that left you with any feelings about the criminal justice system, especially in murder cases, that you feel that you’ve developed any negative feelings about the system because of that case?” The juror responded: “No, not about the system. It’s just that things aren’t always the way they seem.” Voir dire continued the following morning.

The court posed additional questions to Juror T, commenting that in her questionnaire “[i]n terms of the justice system treating people unfairly you said that yes, sometimes you feel it does, and as an example apparently you wrote in the first Rodney King trial. What do you mean by the injustice that you perceive there?” The juror responded: “Well, it seemed that even with the major evidence, that having it on videotape there was still some lack of believing that police could treat a black man like that.

And then when the trial took place, the first trial they were acquitted, even though almost the whole world saw it happening. And coming from Los Angeles and having had relatives treated like that myself it just—it makes it very very hard to keep trusting.” The juror also felt law enforcement officers were too “casual” in investigating the crimes committed against her and her family. Her questionnaire and voir dire disclosed that she believed the criminal justice system was too cumbersome and proceeded far too slowly.

She consistently assured the court, however, that she would put aside her personal views in evaluating the evidence and the potential penalty. When the prosecutor excused Juror T, defendant objected.

Defense counsel offered to submit the matter without argument, but the court requested that counsel attempt to establish a prima facie case that the juror was excused because of bias against African-American persons, asking defense counsel to give “specific reasons . . . that would tend to indicate that there has been an invidious discrimination in the selection of jurors.” Defense counsel responded briefly, making only two points. First, he noted there were only two African-Americans on the two jury panels in the venire, and that the prosecutor excused one of them, Juror T.

Second, defense counsel asserted that neither Juror T.’s questionnaire nor her responses during voir dire indicated she was subject to challenge for cause or “that she couldn’t sit as a fair and impartial juror in this matter.” The trial court determined defendant had not made a prima facie showing of group bias. The court noted that Juror T.’s questionnaire, which it had reviewed prior to its voir dire of the juror, caused the court to pose substantially more followup questions in a “much larger number of areas” than had been the case for other jurors.

The court complimented the juror for her thoughtful responses but stated that the juror, unlike others, was distinguished by the circumstances that her aunt had been prosecuted for the crime of murder and by the juror’s strongly held view that the criminal justice system is not fair when questions of race are presented.

Specifically, the court observed, she had lost faith that the criminal justice system operates fairly for African-American persons. “While she did say some of her faith had been restored by the second Rodney King trial, she did indicate some continuing concerns about it, especially as it relates to participants in the trial who are black.” The court also noted that although the other African-American juror, who had “been there since the beginning as a second juror,” had been passed repeatedly by the prosecutor, the prosecutor challenged Juror T. “the moment she sat down.” Although the court expressly determined that defendant had not made a prima facie showing of group bias and denied the defense motion on that basis, it permitted the prosecutor to comment upon defendant’s claim.

The prosecutor asserted that defense counsel themselves had exhibited some interest in challenging Juror T. The prosecutor explained that his challenge was motivated, not by group bias, but by the fear that Juror T. might not give the prosecution case against defendant, an African-American, a fair hearing because she believed “blacks were treated unfairly in the system” and “she’s had relatives . . . ‘treated like Rodney King.’ ” The prosecutor also alluded to the juror’s statement that her aunt had been wrongly convicted of homicide.

As noted, in support of his claim in the trial court, defendant alluded to nothing more than the circumstance that (1) one of the two African-Americans among the potential jurors had been challenged, and (2) the juror would not have been subject to excusal for cause. The circumstance that the prosecutor challenged one out of two African-American prospective jurors does not support an inference of bias, particularly in view of the circumstance that the other African-American juror had been passed repeatedly by the prosecutor from the beginning of voir dire and ultimately served on the jury. (See People v.

Box (2000) 23 Cal.4th 1153, 1188-1189 [99 Cal.Rptr.2d 69, 5 P.3d 130]; People v. Arias (1996) 13 Cal.4th 92, 136, fn. 15 [51 Cal.Rptr.2d 770, 913 P.2d 980]; People v. Crittenden (1994) 9 Cal.4th 83, 119 [36 Cal.Rptr.2d 474, 885 P.2d 887].) The circumstance that the juror was not subject to exclusion for cause certainly did not support an inference that the exercise of a peremptory challenge against her was motivated by group bias. (See People v. Turner (1994) 8 Cal.4th 137, 165 [32 Cal.Rptr.2d 762, 878 P.2d 521], disapproved on another point in People v.

Griffin (2004) 33 Cal.4th 536, 555, fn. 5 [15 Cal.Rptr.3d 743, 93 P.3d 344] [a prosecutor may act on a hunch or apparently arbitrarily, as long as the peremptory challenge is not based on group bias]; People v.

Arias, supra, 13 Cal.4th at p. 136.) The juror’s own remarks also clearly do not support an inference she was excused because of her race—on the contrary, despite her obvious intelligence and good faith, her voir dire disclosed a large number of reasons other than racial bias for any prosecutor to challenge her, including but not limited to her personal experience with an allegedly unfair homicide prosecution of a close relative and her express distrust of the criminal justice system and its treatment of African-American defendants—a view not restricted to African-American persons. (See People v.

Farnam, supra, 28 Cal.4th at p. 138; People v. Cleveland, supra, 32 Cal.4th at p. 733; People v. Pride (1992) 3 Cal.4th 195, 230 [10 Cal.Rptr.2d 636, 833 P.2d 643].) Nor do we find anything else in the record to supply a basis for an inference that the prosecutor was motivated by racial prejudice. Defendant claims the trial court erroneously required him to prove the existence of “systematic discrimination” (that is, proof that minorities are underrepresented in the venire), citing People v. Arias, supra, 13 Cal.4th 92.

In that case, we commented that “[c]ertain aspects of the trial court’s findings were neither necessary nor relevant, since a Wheeler violation does not require ‘systematic’ discrimination [citation], and is not negated simply because both sides have dismissed minority jurors or because the final jury is ‘representative.’ ” (Id. at pp. 136-137.) Contrary to defendant’s claim, however, the trial court in the present case did not suggest that a prima facie case of group bias could not be established so long as a member of the cognizable group remained on the jury, nor did the court refer to systematic discrimination or to minority jurors struck by the defense.

Defendant asks us to examine the responses of jurors other than Juror T. in determining whether the trial court erred in finding that defendant failed to establish a prima facie case of group bias. In earlier cases we explained that, although such an examination is appropriate at the trial court level when the issue properly is brought to that court’s attention, such an examination for the first time on appeal is unreliable. (See People v. Box, supra, 23 Cal.4th at p. 1190; People v.

Ervin (2000) 22 Cal.4th 48, 76 [91 Cal.Rptr.2d 623, 990 P.2d 506], and cases cited.) Defendant urges reconsideration of these cases in light of the high court’s decision in Johnson, supra, 545 U.S. 162 [162 L.Ed.2d 129], in which the court did not comment upon whether comparative analysis should be undertaken for the first time on appeal, and another decision issued the same day, Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196, 125 S.Ct. 2317], in which the court employed comparative juror analysis in circumstances in which it was undisputed that a prima facie case had been made.

Assuming without deciding that a comparative juror analysis should be undertaken under the circumstances presented, we conclude defendant’s proffered analysis fails to establish a prima facie case of group bias. In the present case, defendant did not direct the trial court’s attention to voir dire or questionnaire responses of jurors other than Juror T. other than to comment on the thoroughness of Juror T.’s questionnaire and voir dire responses.

Assuming without deciding that a comparative analysis is appropriate for the first time on appeal when a reviewing court is engaged in determining whether a prima facie case of group bias was established, we agree with respondent that, contrary to defendant’s claims, defendant has not identified prospective jurors of other ethnicities who were not challenged but had a similar background and views, including personal experience with a close relative’s assertedly wrongful homicide conviction.

We note that two jurors were excused who also had the experience of having close relatives prosecuted for murder (Juror S. and Juror F.), whereas the jurors cited by defendant and not excused experienced the prosecution of relatives for much less serious matters such as driving offenses and, moreover, these jurors did not express the belief that their relatives had been wrongly convicted. (E.g., Juror J. [driving offense], Juror R. [juvenile theft offense], Juror W. [driving offense; this juror also had a relative who had served prison time but she knew nothing else about that matter], Juror O. [a long-deceased relative had been convicted of many theft-related crimes].) Nor did the jurors to whom defendant refers share Juror T.’s marked view that the criminal justice system treats African-American persons unfairly. (Cf.

Juror M. [police officers fail to handle inebriated persons well], Juror R. [O.J.

Simpson was treated differently from the way ordinary citizens would have been treated during the so-called Bronco chase], Juror C. [this juror, examined subsequent to the Wheeler motion, commented on the Rodney King trial but related her concerns about racial issues in the criminal justice system to the riots that followed that individual’s first trial and the effect of this civil strife upon his second jury, denying the episode caused her to lose faith in the jury system: “I’m not concerned about it being fair, I’m concerned about the riot continuing and the civil disorder and how it may have related to the thinking of the second jury”], Juror O. [suggesting that justice is not always done, because the criminal justice system is overburdened].) Defendant urges that Juror T. appeared more knowledgeable about legal procedure than jurors who served on the jury, pointing to her statement that 10 years prior to trial, she had received some training in law enforcement issues in connection with her employment in an administrative capacity, whereas other jurors displayed some confusion concerning matters such as delay in prosecution and the right to public trial.

We see no reason why Juror T.’s limited training would render her a more desirable juror for the prosecution or that a comparison with the other jurors would support an inference Juror T. was challenged on the basis of racial bias. Defendant also emphasizes Juror T.’s connection to persons involved in law enforcement and the judicial system, including the late Attorney Johnnie Cochran, contending that some other jurors who served actually were less desirable for the prosecution by virtue of their lack of similar relationships.

Again, we do not see that the comparison supports an inference that Juror T. was excused because of racial bias. Defendant claims that Juror T. exhibited many views favoring the prosecution’s case, including support for the death penalty and the view that there should be more vigorous prosecution of crime. He contends that the unchallenged jurors expressed more equivocal views on such subjects and that some failed to exhibit the enthusiasm for jury service expressed by Juror T. He notes Juror T. repeatedly acknowledged a juror’s duty to put aside personal opinions and to follow the law.

These circumstances do not signify, however, that the prosecutor was bound to accept her as a juror if reasons apart from group bias supported his challenge, nor, in view of the totality of the evidence, do such circumstances support an inference that the prosecutor challenged Juror T. because of her race.

In supplemental briefing, defendant contends reversal is required on the ground that the trial court determined (or may have determined) whether defendant established a prima facie case by asking whether it was “more likely than not” that the prosecutor challenged Juror T. on the basis of impermissible group bias. As defendant observes, the high court in Johnson, supra, 545 U.S. at p. 164 [162 L.Ed.2d at p. 135] expressly disapproved of that standard for purposes of establishing a prima facie case.

He points out that we must presume the trial court followed existing law, and that at the time of trial the court would have relied upon our Wheeler decision, which alluded to a “reasonable inference” of group bias as a basis for a prima facie showing and also called for the defendant to establish a “strong likelihood” that a juror has been peremptorily challenged on the basis of group bias. (Wheeler, supra, 22 Cal.3d at pp. 280, 281.) Our subsequent decision holding that both of the quoted terms were essentially the same as the Batson standard, and that a prima facie showing called for a demonstration that it was “more likely than not” that group bias accounted for the challenge, was disapproved in Johnson, supra, 545 U.S. at pp. 164, 167 [162 L.Ed.2d at pp. 135, 137] (reversing People v.

Johnson (2003) 30 Cal.4th 1302 [1 Cal.Rptr.3d 1, 71 P.3d 270]). We are not persuaded. Regardless of the standard employed by the trial court, and even assuming without deciding that the trial court’s decision is not entitled to deference, we have reviewed the record and, like the United States Supreme Court in Johnson, supra, 545 U.S. 162 [162 L.Ed.2d 129], are able to apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.

The record does not support such an inference; it is devoid of any suggestion that the basis for the challenge to Juror T. was even “close” or “suspicious.” (Johnson, supra, 545 U.S. at p. 167 [162 L.Ed.2d at p. 137].) In his supplemental brief, defendant also contends that the trial court’s determination was flawed because it speculated as to the prosecutor’s reasons for challenging the juror when it referred to the juror’s views on the criminal justice system and the circumstance that her aunt had been convicted of murder.

He relies again upon the Johnson decision, in which the court stated: “The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. [Citation.] The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question. See Paulino v.

Castro, 371 F.3d 1083, 1090 ([9th Cir.] 2004) (‘[I]t does not matter that the prosecutor might have had good reasons . . . [w]hat matters is the real reason they were stricken’ . . .).” (Johnson, supra, 545 U.S. at p. 172 [162 L.Ed.2d at pp. 140-141].) The quoted caution against speculation must be read in light of the high court’s statement that a prima facie case is established when the “defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Id. at p. 170 [162 L.Ed.2d at p. 139].) Once the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutor’s reasons—it should inquire of the prosecutor, as the high court directed.

But there still is a first step to be taken by the defendant, namely producing evidence from which the trial court may infer “that discrimination has occurred.” (Ibid.) We have concluded that the evidence alluded to by defendant in the trial court did not support such an inference, nor was such an inference supported by the challenged juror’s own statements or anything else in “ ‘the totality of the relevant facts’ ” (Miller-El v. Dretke, supra, 545 U.S. at p. 239 [162 L.Ed.2d at p. 213]) that we have seen in our examination of the record (including the statements of other prospective jurors). B.

Conflict of Interest Defendant contends a potential conflict of interest came to light when, prior to defendant’s first trial, the prosecutor informed the court that prosecution witness Roland Johnson recognized one of defendant’s two defense counsel, Emory King, as the man who had represented Johnson’s wife when the couple were prosecuted jointly for drug sales nine years prior to the trial in the present case. The court instituted an inquiry of King and found there was no conflict of interest.

Defendant contends the court’s failure to conduct a more thorough hearing constituted a violation of his federal constitutional right to the effective assistance of counsel, specifically to counsel free from a conflict of interest. He contends we must reverse the judgment or at least remand for further hearing in the trial court. We are not persuaded. The trial court questioned the prosecutor and King at a brief hearing, ascertaining the nature of the case in which King had been involved and noting that King had not represented prosecution witness Roland Johnson, but his wife.

The court reasoned that the wife’s interest must have been adverse to her husband’s, judging by the appointment of separate counsel for each defendant. King did not recall having been involved in any previous prosecution of Roland or his wife. The court saw no indication of any potential conflict of interest, adding that King was not responsible for the examination of witnesses during the guilt phase of defendant’s trial. The court requested that King check his own records.

At a subsequent hearing, the court asked the parties whether there was any further information to be placed on the record and directed “[b]oth sides [to] try to look into that to see if there’s any further information to be brought to the [c]ourt’s attention.” King then agreed that the court was accurate in stating that King had not represented Roland Johnson, but instead his wife. King stated that he still was looking for the relevant case file, but added that he did not believe there was any potential conflict of interest.

Prior to the second trial, the court expressly found that King and defendant had no conflict of interest. Neither defendant nor defense counsel objected. The Sixth Amendment right to effective assistance of counsel under the federal Constitution includes the right to representation free from any conflict of interest that impairs counsel’s efforts on behalf of his or her client. (Mickens v. Taylor (2002) 535 U.S. 162, 166, 171 [152 L.Ed.2d 291, 122 S.Ct. 1237]; see Wood v. Georgia (1981) 450 U.S. 261, 271 [67 L.Ed.2d 220, 101 S.Ct. 1097]; People v.

Hardy (1992) 2 Cal.4th 86, 135 [5 Cal.Rptr.2d 796, 825 P.2d 781].) We have recognized that counsel’s current or prior representation of a witness may create a conflict, because counsel bears professional responsibilities both to the witness and to the client and may have confidential information concerning his or her representation of the witness. (People v. Cox (2003) 30 Cal.4th 916, 949 [135 Cal.Rptr.2d 272, 70 P.3d 277]; People v.

Bonin (1989) 47 Cal.3d 808, 835 [254 Cal.Rptr. 298, 765 P.2d 460].) But when the attorney has not received any pertinent confidential information from the witness, ordinarily there is no actual or potential conflict of interest. (People v. Cox, supra, 30 Cal.4th at p. 949.) Under the federal Constitution, a defendant who did not object to an asserted conflict at trial must demonstrate on appeal that there was an actual conflict of interest that “adversely affected [the] lawyer’s performance.” (Cuyler v.

Sullivan (1980) 446 U.S. 335, 348 [64 L.Ed.2d 333, 100 S.Ct. 1708].) In some circumstances, the defendant in such a situation is not obliged to establish that the conflict and its adverse effect on counsel’s representation was prejudicial—that is, that it is reasonably probable, in the absence of the conflict and its effect on counsel’s performance, that the outcome of the trial would have been different. Reversal is required simply on a showing of actual conflict that adversely affected counsel’s representation. (Mickens v.

Taylor, supra, 535 U.S. at pp. 166, 172-175 [assuming, without deciding, that lower courts correctly have extended this rule beyond an attorney’s concurrent representation of multiple defendants]; see also People v. Cox, supra, 30 Cal.4th at p. 948.) When a court “ ‘knows or reasonably should know that a particular conflict exists,’ ” it should inquire into the conflict even in the absence of objection by the defendant or his or her counsel. (Mickens v. Taylor, supra, 535 U.S. at p. 168; see Cuyler v. Sullivan, supra, 446 U.S. at p. 347; People v.

Bonin, supra, 47 Cal.3d at p. 836.) Under the federal Constitution, the duty to inquire is not triggered merely because of “a vague, unspecified possibility of conflict.” (Mickens v. Taylor, supra, 535 U.S. at p. 169.) Although the trial court is required to perform some inquiry once it knows or reasonably should know of a particular conflict of interest, the court may decline to pursue the matter if, in its view, the potential for conflict is too slight. (See People v. Bonin, supra, 47 Cal.3d at p. 837.) In Cuyler v.

Sullivan, supra, 446 U.S. 335, for example, although the high court recognized the trial court’s duty to inquire into potential conflicts, the circumstance that defense counsel represented three defendants charged and tried separately for murder did not trigger a duty to inquire in the absence of any objection from a defendant. The separate prosecutions mitigated the potential for conflicting defenses, the defenses were consistent, and there was no indication counsel provided less than a vigorous defense. (Id. at pp. 346-347; see also Mickens v.

Taylor, supra, 535 U.S. at pp. 168-169.) The trial court may place substantial weight on counsel’s assertion that no conflict of interest exists. (People v. Lawley (2002) 27 Cal.4th 102, 146 [115 Cal.Rptr.2d 614, 38 P.3d 461].) As noted, neither defendant nor his counsel objected to King’s continued representation at the first or second trial. Indeed, King stated he believed there was no potential for a conflict.

The circumstance that many years prior to the first trial in the present case one of defendant’s attorneys had taken responsibility for the defense of a person who was not a witness in the present case and whose interest was adverse to that of a prosecution witness does not suggest that defense counsel’s loyalty to defendant was impaired in any manner. Defendant speculates that Johnson’s wife might have related to King some statement by her husband that might have been useful to the defense.

Defendant urges that defense counsel would be obliged to treat such a statement as a privileged communication between spouses. There was no indication, however, that King had received any confidential information that would relate to the present case. There is no basis even for informed speculation that such a communication, had it occurred, had any bearing on the present unrelated case many years later. We believe that the potential conflict identified by defendant in this appeal was so remote and tenuous that it did not require the trial court to inquire further than it did.

Even if we were to conclude that the court should have conducted further inquiry, any error would not require reversal. This court repeatedly has concluded that “[a] conviction will be reversed on the ground the trial court failed to satisfy its duty to inquire into a possible conflict, or to adequately respond to its inquiry, only where the defendant demonstrates that an actual conflict of interest existed, and that the conflict adversely affected counsel’s performance.” (People v.

Frye (1998) 18 Cal.4th 894, 999 [77 Cal.Rptr.2d 25, 959 P.2d 183], and cases cited, italics added.) Defendant does not attempt to demonstrate how the alleged conflict affected King’s performance. As noted, there is no evidence defense counsel actually possessed confidential information arising from his prior representation; indeed, defense counsel agreed with the court that there was no potential for conflict. As the trial court observed, King was not responsible for examining Johnson. (See People v.

Clark (1993) 5 Cal.4th 950, 1002 [22 Cal.Rptr.2d 689, 857 P.2d 1099] [noting a similar circumstance].) Defendant offers no basis for concluding that the performance of either of his attorneys was adversely affected by King’s prior contact with Roland Johnson’s wife. Defendant contends he should not be required to establish that the asserted conflict had an impact on his attorney’s performance.

He claims that the standard of review we have applied in our prior cases—namely, that failure to conduct an adequate inquiry does not require reversal of the conviction unless the defendant can establish actual conflict, including an adverse impact on counsel’s performance—is contrary to the high court’s approach and analysis in Wood v. Georgia, supra, 450 U.S. 261.

In Wood, the trial court failed to conduct an inquiry although it was on notice that the defendants, former employees charged with failure to pay a fine imposed as a condition of probation, were represented by counsel retained by their employer, whose interest diverged from theirs. The employees’ defense was that (1) imposition of the fine violated equal protection principles because the employees would be incarcerated on the basis of their inability to pay, and (2) they had believed their employer would pay the fine.

The interests of the former employees and the employer were in potential conflict, because it was in the employer’s interest to avoid its obligation to pay the fines by permitting heavy fines to be levied against its employees and then to raise the equal protection defense on their behalf. (Id. at pp. 264, 267.) The employer’s counsel “may not have pursued [the employees’] interests single-mindedly,” as the trial court should have recognized. (Id. at pp. 271-272.) The high court vacated the judgment and remanded the case to the trial court to determine whether an actual conflict existed, without clearly referring to any adverse effect on counsel’s performance.

But the high court in the Mickens case specifically rejected the view that the Wood decision stands for the proposition that a trial court’s failure to perform an adequate inquiry into a potential conflict requires reversal in the absence of a showing of an adverse effect on counsel’s performance.

In Mickens, in which it also was alleged that the trial court had conducted an inadequate inquiry, the high court explained that prior cases held that failure to conduct an adequate inquiry required reversal when the defendant demonstrated an “actual conflict.” An actual conflict and an adverse effect on counsel’s performance are not separate considerations, however. Rather, an actual conflict is demonstrated precisely when it can be established that a conflict of interest “adversely affected counsel’s performance.” (Mickens v.

Taylor, supra, 535 U.S. at p. 171.) In Mickens, the court explained that its conflict of interest doctrine is a product of its enforcement of the Sixth Amendment right to effective assistance of counsel. (Mickens v. Taylor, supra, 535 U.S. at p. 166.) Denial of that right ordinarily does not require reversal of a conviction in the absence of a showing that it is reasonably probable the attorney’s ineffective representation affected the outcome. (Ibid., citing Strickland v.

Washington (1984) 466 U.S. 668, 685-686, 694 [80 L.Ed.2d 674, 104 S.Ct. 2052].) Exceptions to the Strickland prejudice standard arise when a defendant has been denied the assistance of counsel entirely, or has been denied the assistance of counsel at a critical stage or in other “ ‘circumstances of that magnitude.’ ” (Mickens v. Taylor, supra, 535 U.S. at p. 166.) An attorney who actively represents conflicting interests may create a situation “ ‘of that magnitude’ ” {ibid.), but only after it is established that the conflict of interest actually affected counsel’s representation.

Atrial court’s duty to inquire into a potential conflict does not involve a problem of the same magnitude.

When a defendant claims that a trial court’s inquiry into a potential conflict was inadequate, the defendant still must demonstrate the impact of the conflict on counsel’s performance. {Id., at pp. 173-174.) Further, contrary to defendant’s suggestion, the Wood decision certainly did not conclude that due process or Sixth Amendment principles require, if not an outright reversal, an automatic remand for further hearing whenever a trial court has not inquired sufficiently into a potential conflict of interest.

Rather, the high court relied upon a record demonstrating an obvious potential conflict of interest that seriously implicated the employees’ counsel’s decision to pursue a theory of the case that benefited the employer rather than the employees. The case before us does not present such a record. Accordingly, even if the trial court should have inquired further, we reject defendant’s argument in light of the record as a whole and the absence of any evidence—or even a claim—that a conflict of interest affected defense counsel’s performance. C.

Limitations on Defense Evidence Defendant contends that two asserted errors in limiting the testimony of defense witnesses deprived him of his right to present a defense, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. 1. Dr. Loftus At defendant’s second trial, Dr. Geoffrey Loftus, a professor of psychology at the University of Washington in Seattle, was permitted to testify as an expert on the subject of memory, specifically memory as it functions during the stress of witnessing a crime or other disturbing event.

As a witness, his thesis was that memory’s function should not be compared to a recording device. Rather, memory is a creative endeavor that employs fragments of perception in the construction of a coherent narrative of an event. Dr. Loftus also commented upon the function of stress, intoxication, bias, and the lapse of time on a witness’s ability accurately to recall events such as violent crimes. He commented specifically that witnesses who observe or feel threatened by weapons often fail to pay attention to other circumstances.

Among several other topics, he also commented upon the effect of events subsequent to a crime upon a witness’s recollection of the crime itself, the weight to be accorded the degree of confidence expressed by a witness in an identification, and cross-racial identification. (As already noted, defendant is African-American. Some of the identification witnesses were African-American and some were White.) The court gave a pattern jury instruction specifically advising the jury that many of the topics touched upon by Dr.

Loftus, including stress, lapse of time, focus upon a weapon, the witness’s confidence in his or her identification, and problems of cross-racial identification, were relevant to their evaluation of the identification witnesses. (See CALJIC No. 2.92.) Defense counsel relied extensively upon Dr. Loftus’s testimony in closing argument to the jury. Defendant nonetheless claims prejudicial error occurred when the trial court placed a limitation upon Dr. Loftus’s testimony. Defense counsel had sought to call Dr.

Loftus as a witness at defendant’s first trial, but the court excluded his testimony pursuant to Evidence Code

section 352. The court announced that the same ruling would remain in effect for the second trial. After the eyewitnesses testified at the second trial, defendant urged the court to reconsider. Further arguments of counsel ensued, and defendant made a thorough offer of proof as to the subjects upon which it was proposed the expert would testify. Placing the burden on defendant to establish the relevance of the evidence, and the burden on the prosecution to support its claim that the evidence should be excluded pursuant to Evidence Code

section 352, the court reversed its earlier ruling, concluding all of the subject matter proposed for expert testimony was relevant and sufficiently probative, with veiy limited exceptions described below. Defense counsel proposed to ask Dr. Loftus to “testify to unconscious transference.

And . . . what that is[,] is if [defendant] had been seen in that neighborhood at some earlier time, either that day or some previous day, some of the witnesses may have recognized him on that basis, rather than the observation itself, but as being someone they had seen in the area.” The court declined to permit this line of questioning, determining that the “unconscious transference” evidence was irrelevant and commenting that “it would be entirely speculative based on this record to suggest that any of the witnesses who testify in this case would be unconsciously transferring a prior examination of the [defendant at the scene to this event.” The court went on to explain that the evidence was to a certain extent cumulative to other admissible evidence: “To the extent that the transference refers to other things such as seeing him in a photograph or seeing him in a prior proceeding, that is able to be explained under those theories and offers of testimony.” As noted, the court determined that most of the proposed expert testimony was admissible: “The remaining theories of . . .

Dr. Loftus’s testimony of factors such as duration, distance, attention, weapon focus, stress, cross-racial identification, retention intervals, effect of prior trial and photo bias, statistical versus chance identification, and the relationship between confidence and accuracy, I find all to be relevant to these proceedings.” The court reiterated the limitations it was imposing on Dr. Loftus’s testimony, referring both to relevance and undue confusion of the jury: “[H]e may not make reference to the unconscious transference by seeing someone at the scene. Those are facts as I already indicated are irrelevant.

And they should not be added to confuse the jury and cause them to speculate that maybe someone did see Mr. Cornwell there before, since there was no evidence he was ever there before.” Defense counsel acknowledged that he understood the court’s ruling. On appeal, defendant complains that the court erred in refusing to “permit Dr.

Loftus to explain the concept of ‘unconscious transference,’ that is, if the witnesses had seen defendant at or near Cashland weeks or months before the crime, they might have based their identification of defendant as the robber on their earlier sighting, and not on what they saw at the scene of the crime.” According to defendant, such testimony would have been relevant because, in testimony subsequent to the hearing on Dr. Loftus’s testimony, Michael Johnson testified that defendant had been present at the scene “a couple of months” before the crime.

Defendant surmises that he may have been present on the same occasion at which certain identification witnesses previously had been at Cashland. He points out that Kimberly Scott testified that Michael Johnson ordinarily worked at Cashland only on the first day of the month. According to defendant, it follows that Johnson “probably” saw him (defendant) at Cashland on the first of the month. Further, defendant claims, there was evidence that three identification witnesses were present at Cashland to transact business on the busiest day of the month, which would coincide with the first business day of any month.

He refers to Cassandra Henderson, who was outside waiting for her children to transact business, Susan Erickson, who was inside Cashland, and Frances Rivers, who was waiting for her sister to transact business. Defendant further observes that one of the witnesses testified that she came to Cashland to cash her welfare check on a monthly basis.

According to defendant, “[t]hese undisputed facts give rise to a reasonable inference that these eyewitnesses had, perhaps unwittingly, observed defendant on a prior occasion. ‘Standing alone the inference may have been weak, but that does not make the evidence irrelevant.’ ” Defendant does not claim he renewed his efforts to broaden the testimony of Dr. Loftus after Michael Johnson testified he had seen defendant at Cashland on a prior occasion.

Moreover, the question whether defendant presented an adequate foundation to establish the relevance of this line of questioning lies within the trial court’s broad discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1175 [64 Cal.Rptr.2d 892, 938 P.2d 950].) Additionally, even if the “unconscious transference” theory was of some tenuous relevance under the facts presented to the court, the court also excluded the line of questioning because of its tendency to confuse the jury.

Defendant certainly did not present evidence that any of the identification witnesses had seen defendant at Cashland on a previous occasion, and the chain of inference recited above in support of the claim that the witnesses and defendant might have been at the establishment on the same day and at the same time is highly speculative. It also would be speculative to draw the inference that, even had their prior visits to Cashland coincided, the witnesses unconsciously had observed defendant.

Expert testimony concerning the possibility that a prior sighting could have influenced a witness’s identification might have led the jury to believe there was evidence the witnesses had observed defendant prior to the commission of the crime.

Moreover, the court permitted thorough questioning of the identification expert on multiple topics that were highly relevant to the facts of the case; the court reasonably could conclude the time necessary to develop the “unconscious transference” theory was not worth the speculative probative value of the evidence. “Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code

section 352, is reviewed for abuse of discretion.” (People v. Holloway (2004) 33 Cal.4th 96, 134 [14 Cal.Rptr.3d 212, 91 P.3d 164].) But “exclusion of evidence that produces only speculative inferences is not an abuse of discretion.” (People v. Babbitt (1988) 45 Cal.3d 660, 684 [248 Cal.Rptr. 69, 755 P.2d 253].) The trial court acted within its discretion in concluding that, even if relevant, the very limited and speculative relevance of the evidence and its marginal probative value was outweighed by the time necessary to explain the point and by the potential that the evidence would confuse the jury.

Moreover, any possible error cannot have been prejudicial, in light of the broad scope of the far more significant testimony the expert was permitted to give, the instruction focusing the jury’s attention on many of the factors relied upon by the expert, and the circumstance that defense counsel was permitted to and did weave in the expert’s testimony throughout his extensive evaluation of the eyewitness testimony. Citing Chambers v.

Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297, 93 S.Ct. 1038], defendant claims that exclusion of testimony on the subject of “unconscious transference” violated his federal constitutional right to present a defense. We are not persuaded. A defendant has the general right to offer a defense through the testimony of his or her witnesses (Washington v. Texas (1967) 388 U.S. 14, 19 [18 L.Ed.2d 1019, 87 S.Ct. 1920]), but a state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code

section 352—generally does not infringe upon this right (People v. Lawley, supra, 27 Cal.4th at pp. 154-155; People v. Lucas (1995) 12 Cal.4th 415, 464 [48 Cal.Rptr.2d 525, 907 P.2d 373]). The excluded evidence in the present case was not so vital to the defense that due process principles required its admission. (See People v. Hawthorne (1992) 4 Cal.4th 43, 56-58 [14 Cal.Rptr.2d 133, 841 P.2d 118]; People v.

Babbitt, supra, 45 Cal.3d at p. 684.) Although the high court in Chambers determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question “the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.” (Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303.) Defendant is unable to point to the exclusion of evidence of vital or significant probative value (see People v.

Babbitt, supra, 45 Cal.3d at p. 684), and the court accorded him broad latitude to examine Dr. Loftus, including examination on the far more probative question whether the witness’s proven observation of defendant in photo lineups or at the prior trial might have affected the confidence with which they identified him in the present case. (See People v. Ramos, supra, 15 Cal.4th at pp. 1178-1179.) 2. Dr. Shoenfeld The defense called Dr.

Eugene Shoenfeld, a psychiatrist with particular expertise in the field of drug addiction and the properties of heroin and methadone, who testified concerning the effect of those substances on the perception, ability to recall, and veracity of persons using them. Defense counsel questioned Dr. Shoenfeld about Elavil, lithium, and Stelazine, which are psychotropic medications that Roland Johnson testified he was taking at the time of the events underlying the present crime.

Instead of pursuing the question of the effect of such medication on the ability of a person to perceive and recollect, however, defense counsel inquired as to the condition for which Stelazine was prescribed. Dr. Shoenfeld testified that Stelazine is a “[m]ajor tranquilizer[] . . . generally used in the treatment of psychoses. Stelazine is one of the older drugs used for the treatment of psychosis. It’s related closely to [T]horazine, for example. It’s another antipsychotic drug.” When defense counsel asked, “[W]hat do you mean by psychoses? Is that some sort of mental condition?,” the prosecutor objected.

The prosecutor explained to the court that he feared defense counsel was “trying to establish what’s wrong with Roland Johnson mentally and physically based on these short questions of what drugs he was taking. And I don’t believe [there is] a proper foundation for this doctor to now discuss that we use this drug for psychoses. We don’t know what—anything about [why] Roland Johnson . . . was prescribed this drug, and I don’t think [defense counsel] has laid a foundation for that, [f] And I would note that he [Roland Johnson] said he used them as needed.

And without knowing more about it, this doctor’s never treated him, we don’t know when, why he’s on them.” In questioning by the court, Dr. Shoenfeld commented that, in addition to its use as an antipsychotic, Stelazine may be prescribed for relief of nausea or as a tranquilizer. It was established that the witness had neither examined Roland Johnson nor reviewed Johnson’s medical records. The court determined defendant had not established a foundation “from Mr. Johnson’s doctor as to whether he, in fact, has prescribed [S]telazine .... Roland Johnson’s not even qualified to tell us for sure what he’s getting.

More importantly, we don’t have a medical opinion why it was prescribed for him.” The court also commented that, according to Dr. Shoenfeld, the drug is prescribed for reasons other than psychosis, and hence further questioning concerning the psychiatric condition for which Roland Johnson might have been prescribed the drug would be speculative. The court ultimately ruled that defense counsel could explore the likely effects upon a person taking Stelazine and lithium but that counsel could not elicit Dr. Shoenfeld’s opinion concerning the probable condition for which the drugs had been prescribed.

The court explained that this sort of “reverse diagnosis” on the basis of prescribed medication was too speculative, referring to Evidence Code

section 352. The court characterized the line of inquiry as speculative, because Dr. Shoenfeld had not examined Roland Johnson or prescribed medication for him. In addition, the court pointed out that defendant could introduce direct evidence of Roland Johnson’s condition and the reasons he took the medication by calling his prescribing physician as a witness. Contrary to defendant’s claim, neither the trial court’s application of the rule of evidence requiring the proponent of evidence to supply an adequate foundation (Evid. Code, § 403), nor the court’s exercise of discretion pursuant to Evidence Code

section 352, deprived defendant of his Sixth Amendment right to present a defense. “The decision whether foundational evidence is sufficiently substantial is a matter within the court’s discretion.” (People v. Lucas, supra, 12 Cal.4th at p. 466.) We see no abuse of discretion in the present case, particularly because Dr. Schoenfeld lacked personal knowledge concerning Johnson’s condition. (See ibid.) In addition, the physician informed the court that there were a number of reasons Stelazine might be prescribed. Defendant was able to elicit testimony from Dr.

Shoenfeld demonstrating that Stelazine primarily is used to treat psychosis, and thus the jury could have surmised that Johnson suffered from some variety of psychosis. More specific information concerning Johnson’s condition could have been made available by calling Johnson’s prescribing physician as a witness. There was nothing fundamentally unfair about applying ordinary rules of evidence to exclude speculative opinion testimony, especially because of the availability of an obvious other source for the same information, as pointed out by the trial court. (See People v.

Ramos, supra, 15 Cal.4th at pp. 1175-1176.) D. Spectator Misconduct Defendant contends “continuing and unchecked” spectator misconduct violated his right to a fair trial and a trial by an impartial jury, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. He refers to the following circumstances. After the jury rendered its guilty verdict, defendant requested an evidentiary hearing and moved for new trial on the basis of spectator misconduct he asserted occurred during trial.

In support, he offered the declarations of Defense Attorney Lyons, defense investigator Michael Sailors, and defendant’s wife, Carolyn Cornwell. In his declaration, Defense Counsel Lyons stated that spectators had burst into the courtroom during the defense closing argument, and that spectators had rolled their eyes and sighed audibly. He believed the spectators were attempting to influence the jury. Sailors declared that he had observed “constant whispered remarks, snickers, laughter and gasps of disbelief from both Ms. Reagan [the victim’s daughter] and Ms.

Scott [the owner of Cashland], and similar activity from the group seated in front of them” during certain defense testimony. He believed the remarks “could have been overheard by the jurors,” who seemed to redouble their attention to the testimony during these episodes—possibly, Sailors believed, in order to “shut out” the disturbance. Defendant’s wife stated in her declaration that she observed members of the victim’s family gesturing, whispering, and frowning in response to testimony. She observed Ms.

Scott, who was the owner of Cashland and was the victim’s romantic partner, leave her seat briefly during prosecution witness Erickson’s testimony, then greet and touch Erickson as she left the courtroom. Mrs. Cornwell also claimed one juror observed Ms. Scott making a dismissive gesture and statement concerning questions put to Roland Johnson during defense cross-examination—questions related to Johnson’s potential access to information concerning the crime through newspaper reports. Mrs. Cornwell declared that Ms.

Scott gasped, sighed, and shook her head visibly during testimony she found objectionable and that, addressing a spectator seated behind her, she stated: “you think he would just jump up saying I did it, I did it.” According to Mrs. Cornwell, Ms. Scott was admonished by the prosecutor to stop conversing about the case with the other spectator. Mrs. Cornwell stated that, when the prosecutor remarked in closing argument that defendant had underestimated Reagan, Ms.

Scott audibly said “that’s right.” The prosecutor opposed defendant’s motion for an evidentiary hearing and for a new trial, noting that because the jurors’ mental processes were not subject to inquiry, an evidentiary hearing could establish only whether or not the jurors observed the alleged misconduct. The prosecutor made an offer of proof based upon his own observations, stating that (1) the juror referred to in Mrs. Cornwell’s declaration who allegedly observed Ms. Scott’s dismissive gesture was an alternate who did not serve during the guilt phase deliberations; and (2) the prosecutor’s admonition to Ms.

Scott occurred in response to a conversation he had witnessed on an occasion when the jury was not present in the courtroom. The prosecutor reminded the court that it had witnessed the alleged disturbance during defense counsel’s closing argument, and contended the incident had been inadvertent and at most had constituted a brief distraction. The comment made during the prosecutor’s closing argument “wasn’t a loud outburst of screaming, but you could hear it. That was the only thing I heard throughout the entire trial.

And I . . . thought the Court heard it, because I thought you mentioned something to the people who were here present in court afterwards. Make sure you keep it down, something to that effect.” The prosecutor urged: “I’m asking this court to assume that they [the jurors] did observe some of these items and to rule that because of the nature of them and trivial nature of them, that there’s no substantial likelihood that could have possibly influenced the jury.” The court carefully described the layout of the courtroom for the record.

It noted that it frequently had glanced at counsel during trial, and at those times could not help but observe the spectators.

The court pointed to the prosecutor’s invitation to the court to assume the defense allegations were true, noting that the concession eliminated the need for an evidentiary hearing to “resolve material, disputed issues of fact.” The court also commented that “[t]he persons necessary to shed light on the actual physical actions are all available to the [c]ourt without the jury having to come forward.” It also commented upon the potentially disruptive effect of examining the jury between the conclusion of the guilt phase and commencement of its continued service during the penalty phase.

The court denied the defense’s motion for an evidentiary hearing. The court subsequently denied a motion for new trial based upon the alleged misconduct, explaining that it was “aware of the overall conduct [of spectators] and the overall impact that the matter would have” and therefore was in a unique position to interpret the “otherwise undisputed facts.” As to each allegation, the court commented that, to the extent it witnessed the events, they were minor and innocuous in their impact.

For example, the court stated that when the spectators entered the courtroom during defense closing argument, they did not “burst” in but merely entered, permitting the noise from the hallway to penetrate the courtroom. The court found that the statement “that’s right,” made by a spectator during the prosecutor’s closing argument, could be heard only as a soft sibilant at the front of the courtroom. The court acknowledged it had admonished the spectators concerning courtroom demeanor, but stated this had occurred after the bailiff noted there had been a great deal of “eye rolling.” The court characterized Ms.

Scott’s demeanor and behavior during trial as polite and quiet, and added that the jury would not interpret any comments made by her as based on personal knowledge, because she did not witness the crime. As for the remaining alleged incide

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