THE PEOPLE, Plaintiff and Respondent, v. RAYNARD PAUL CUMMINGS and KENNETH EARL GAY, Defendants and Appellants, 4 Cal. 4th 1233

Opinion BAXTER, J. I. After a joint trial before separate juries in the Los Angeles County Superior Court, defendants Raynard Paul Cummings and Kenneth Earl Gay were convicted of the June 2, 1983, wilful, deliberate, and premeditated first degree murder of Paul Verna. (Pen.

Code, § 189; count XIX.) The juries also found that the murder was committed under the special circumstances of an intentional killing of a peace officer engaged in the performance of his duties by one who knew or should have known he was such (§ 190.2, subd. (a)(7)), and was committed for the purpose of preventing a lawful arrest (§ 190.2, subd. (a)(5)); that a principal was armed with a firearm (§ 12022, subd. (a)); and that each defendant personally used a firearm (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). Each jury returned a penalty verdict of death.

Raynard Paul Cummings had previously entered pleas of guilty to two counts (I, VII) of attempted robbery (§§ 664/211), eleven counts (II, III, IV, V, VI, VIII, IX, XII, XIII, XIV, XV) of robbery (§ 211) and one count (XVI) of conspiracy to commit robbery (§§ 182/211), in each of which he and Kenneth Earl Gay were jointly charged. He had also entered pleas of guilty to two additional robbery counts (X, XI) and to one count (XVIII) of being an ex-felon in possession of a concealable firearm (§ 12021).

The jury before whom Kenneth Earl Gay was tried jointly with Raynard Paul Cummings on the murder charge had first heard evidence on counts charging Gay with, and ultimately convicted him of, the two attempted robbery counts, ten of the robbery counts (counts II, III, IV, V, VI, VIII, IX, XII, XIII, XIV), conspiracy to commit robbery (count XVI), and being an ex-felon in possession of a concealable weapon (count XVII), and found that he had personally used a firearm in committing three of those offenses (§§ 12022.5, 1203.06, subd. (a); counts II, VI, IX) and had inflicted great bodily injury on victims in two (counts II, VI).

After denying motions for new trial and modification of the penalty, the trial court imposed a sentence of death on each defendant for the murder.

These appeals are automatic. (§ 1239, subd. (b).) Each defendant claims that he was denied trial before a jury selected from a representative cross-section of the populace; that the trial court erroneously excused for cause prospective jurors whose views on the death penalty did not affect their ability to fairly apply the law; and that the court erred in denying their motions for severance and instead required them to stand trial together before separate juries on the murder count and, as to Gay, on the robbery counts. They also argue that their motions for change of venue were erroneously denied.

Each also makes several individual claims of error. We conclude that the robbery, attempted robbery, and conspiracy to commit robbery convictions of defendant Gay must be reversed, but the judgments should be affirmed in all other respects. II. Guilt Phase The Prosecution Case A description of the procedures utilized in the trial court and an overview of the evidence offered at the guilt phase of the joint murder trial is helpful in understanding the procedural and substantive issues. The evidence will be discussed in greater detail as it is relevant to the specific claims of error.

The robberies and related offenses in which defendants were implicated were committed in April and May 1983. All were committed in northern Los Angeles County. Those charged in counts XII, XIII, and XIV allegedly occurred on May 29, 1983. That charged in count XV, of which only defendant Cummings was convicted, was allegedly committed on May 31, 1983, only two days before the murder. The time frame within which they were committed is relevant inasmuch as the People theorized that fear of arrest for the robberies was a motive for the murder.

The murder was committed about 5:40 p.m. on June 2, 1983, in the 12000 block of Hoyt Street in the Lakeview Terrace district of San Fernando Valley, a location within the City of Los Angeles. The victim, Los Angeles Police Department Motorcycle Officer Paul Verna, had stopped a stolen car being driven by Pamela Cummings (Pamela) for a traffic violation. The car stopped in front of 12124 Hoyt. Pamela’s husband Raynard (Cummings) was in the rear seat of the two-door coupe. Kenneth Gay (Gay) was in the front passenger seat.

The car, a gray or silver and black two-door 1979 Oldsmobile Cutlass coupe, had been stolen by Cummings and a second person who entered the North Hollywood home of the sixty-nine-year-old owner and took the keys from her at gunpoint on May 26, 1983. Pamela had removed the license plates on the car prior to the time it was stopped by Officer Verna, replacing them with plates stolen from another car.. Pamela, who had no driver’s license, stepped out of the car and offered other identification to the officer. He then approached the car and asked the occupants for identification.

Officer Verna was then shot six times by the occupants of the car, all shots coming from a single handgun. The first shot knocked him backward and he fell. The coroner later labelled that first shot “Number 6.” The remaining shots hit him as he was falling and lay on the street. The car then drove off, but quickly returned and stopped by the fallen officer. Gay stepped out, picked up Pamela’s identification card, and the murder weapon which had been dropped or thrown down at the scene. The officer’s gun was also picked up, either at this time or earlier when he fell.

The field identification card which Officer Verna had completed when he questioned Pamela was found at the scene. The entries on that card, although inaccurate as Pamela had given a false address, gave investigating police officers information that led to the apartment complex in which Kenneth and Robin Gay (Robin) lived. The officers followed Pamela and Robin from that location to a bus depot, and to Oceanside where the women left the bus and were picked up by Cummings and Gay in Robin’s green Plymouth automobile.

The foursome were arrested on June 3, 1983, after they had stopped at a convenience store in Escondido where Pamela had asked the proprietor for directions to Arizona and then had driven on to San Diego and headed east on a main route toward that state. The officers were not aware while following the car that Cummings and Gay were in it. Only after they learned that the women planned to go to Arizona and stopped the car did they find the two men, Gay lying on the floor behind the front seat of the car and Cummings on the back seat. Officer Verna’s gun was found on the floor under Gay.

At almost the same time, the Oldsmobile Cutlass was located where it had been abandoned. The license plates had been changed. Fingerprints of Cummings, Gay, and Pamela were identified in that car. The murder weapon was not located. A comparison of bullets fired from a gun possessed by Cummings prior to the murder with those which killed Officer Verna confirmed that the same gun was used to commit the murder.

In the days immediately before the murder Cummings had told a companion twice that he was not worried about being stopped by police while in a stolen car because he would not give the officer a chance to ask him any questions. Both Gay and Pamela were present on one occasion when Cummings made this statement. At the time of the murder Cummings was on parole by the State of Delaware. Gay was on parole following a felony conviction in California. Several eyewitnesses observed some of the events on Hoyt Street. Their versions of the events and identification of the shooter or shooters varied greatly.

The People relied on the statements of these witnesses and of others who related inculpatory statements subsequently made by Cummings for a theory that Cummings fired the first shot from the rear seat after which the gun was passed to Gay who stepped out of the car and fired the remaining shots into the fallen body of Officer Verna. Each defendant relied on some of the same evidence, as well as forensic evidence, in his effort to persuade the jury that the other fired all of the shots. The eight independent eyewitnesses testified variously: 1.

Oscar Martin, who was 12 years old in 1983, identified Cummings as a person who shot Officer Verna. His trial and preliminary hearing testimony, and his statements to investigating officers, differed in significant respects. At the trial Oscar testified that he was in the front yard of his home when he saw Officer Verna giving Pamela a ticket. A four-door gray car was stopped in front of the house. Oscar testified at one point that the driver’s side was farthest from his house, but later said the driver was not on the far side. The officer’s motorcycle was behind the car.

Oscar went into his house and told his mother, who was in the kitchen, what he had seen. She told him to stay inside. He then looked out of the living room window. He saw the back door of the car open and a person he identified as Cummings get up and shoot the officer four times. Oscar first said that he thought that the door that opened was on the side of the car closest to his house, but he was not sure. He also thought that the officer was standing on the passenger side of the car. After the shooting he saw the man get into the car and drive off. He did not see anyone else in the car.

On cross-examination Oscar testified that the car was between him and the officer and the person who shot the officer. He also testified that the shooting was over at the time his mother, Rosa Maria Martin, and his sister, Sabrina Martin, came to the front of the house from the kitchen, and that when he saw her coming he ran and told them that the officer had been shot four times. At the preliminary hearing Oscar had testified that the door on the driver’s side of the car was open and that he saw a man stand up and shoot the officer. That inconsistent testimony was admitted at trial.

At the grand jury hearing Oscar testified that the man who shot the officer got out of the passenger side door. Oscar did not see any shots fired from within the car. Earlier, at a lineup, Oscar had entered the number 4 on a card, thereby identifying Gay as the person who shot the officer. At trial he said he had marked down that number because he was copying from his mother’s form, not because he recognized the person in the lineup.

Oscar acknowledged that after viewing the lineup he told a detective that he first thought the person who was number 4 was the person who shot the policeman, but he had changed his mind because there were scratches on the face of the person in the lineup and he did not remember the man who shot the officer having scratches on his face. Following this explanation, defendant Gay was asked to stand and remove his eyeglasses. Oscar then agreed that Gay looked like the person wearing number 4 in a photograph of the lineup.

He also conceded that he had not recognized anyone in a different lineup, and that the man wearing number 5 in a photo of that lineup was defendant Cummings. He had, however, identified another person in yet another lineup. In an interview on the night of the murder Oscar had said that Officer Verna was knocked off balance while talking to Pamela when someone in the back seat of the car opened the door. The man in the back seat, a Black male in his 20’s, skinny, with a moustache, sideburns and curly hair, then got out, took the officer’s gun, and shot the officer 4 times.

At the preliminary hearing Oscar had pointed to Gay as a person who had hair like the person he saw shoot Officer Verna. 2. Rosa Maria Martin, Oscar’s mother, had gone out and looked down her driveway after Oscar told her that a police officer was giving someone a ticket. She saw nothing, and went back inside. She then heard the gunshots, at least four, with a space between the first one and the others. Oscar then came to her and said: “They killed him.” After telling the others in the house to stay out of the living room, Rosa Martin looked out of the living room window.

She saw the two-door car driving slowly down the street, saw the driver, whom she identified as Gay, get out and pick up a revolver, and get back into the car. A woman was then in the passenger seat, but Ms. Martin could not tell if anyone was in the rear seat. The man she saw was light skinned, with curly hair and a moustache. Oscar told her that the man he had seen was a Black man, “really dark.” At the lineup she had identified number 4 (Gay), and had asked Oscar if number 4, whom Oscar had marked on his card, was the man he had seen.

He replied “no” and then tried to erase the mark he had made but the pencil did not have an eraser. Ms. Martin had instructed Oscar earlier to fill out the form in the same manner as she did, and he said he had put down the number 4 because she had done so. Cummings offered evidence that Oscar was interviewed at the time of the lineup and said he thought number 4 was the shooter, but attempted to erase that number when he saw that the man had scratches on his face. He did not remember any scratches on the face of the man he saw shoot the policeman. He did not say that he had copied the number from anyone else. 3.

Shequita Chamberlain was a passenger in a car which drove by the intersection of Gladstone and Hoyt just after she heard a noise which she did not then recognize as a shot. She looked down Hoyt and saw a tall, dark-skinned Black man and a police officer. She thought they were talking. She saw a car stopped nearby and a police motorcycle. She then heard another shot, saw the officer fall on his back, and, after the car she was in turned and went back, she saw the man get into the car that was stopped next to the officer and drive off.

Although Cummings’s complexion, as depicted in a photograph, was close to that of the man she saw, Cummings was not that man. The complexion of Gay, as depicted in a photograph, was lighter than that of the man she saw. 4. Marsha Holt was in a bedroom of a home on Hoyt Street across the street from the scene of the homicide when she looked out and saw a silver car and a police officer giving a ticket to Pamela. She turned away, but looked out again when she heard gunshots. She first heard one shot and then after a minute or two heard a couple more shots. It was at that point that she looked out.

She saw the officer falling, and saw the man who shot him pick up the officer’s gun. She then saw the man run back to the car, get in, and drive away. She thought he was in the passenger side, and the lady was driving. She identified Gay as the man she had seen. Holt also testified on cross-examination, however, that she saw Gay get out of the car, walk around the car, and speak to Officer Verna before she heard any shots. He did not get back into the car until Pamela drove up the street and turned it around.

After the incident Holt had described the shooter as being light complexioned or of “mixed race.” At the preliminary hearing she had testified that she saw the gun in Gay’s hand, saw him fire while standing, and saw him run back to the car and get in. She also saw him pick up the officer’s gun. There was a pause of minutes or seconds between the first shot she heard and the rest of the shots. She had identified Gay at a lineup, at the grand jury hearing, and at trial as the shooter. 5.

Robert Thompson was on a ladder in front of a house across the street from the place defendants’ car was stopped by Officer Verna. He saw the officer giving a ticket to a woman. He saw two other people in the car: Gay, who appeared to him to be a White male, in the front seat and Cummings, a Black man, in the rear on the passenger side of the seat. He looked again when he heard a noise and saw Officer Verna backing away from the driver’s side door holding his chest. He saw a gun held in the right hand of a person in the back seat extending out of the car. The arm holding the gun was medium-black complected.

The witness was certain that the arm he first saw extending from the car with a gun in hand was that of the person in the back seat. He had not remembered that when he testified at the preliminary hearing, but after a subsequent “walk through” of the events, he recalled that sequence. After the first shot, Thompson jumped off the ladder but watched the arm with the gun as he did so. He looked away as he tried to hide behind a bush. At that point he no longer saw the gun.

When he looked again he saw Gay get out of the front seat with a gun in his hand and walk toward the officer with his arm at full extension pointing the smoking gun at the officer who was on the ground. Gay stood straddling the officer who was on his back. Cummings did not move out of the backseat of the car. On the night of the shooting Thompson had told an investigating officer that the man in the rear seat had a gun and had gotten out of the car and shot the policeman. He had recalled other facts after returning to the scene to participate in the reenactment of the events. 6.

Shannon Roberts, who was thirteen years old when these events occurred, was at a home about two or three houses from the location of the shooting. He saw Officer Verna giving a ticket to a woman who was standing outside a car. Shannon then turned and went down the driveway, heard a gunshot, turned back, and saw Officer Verna falling backward and Gay shoot at the officer four times. Gay then got into the passenger side of the car, the woman got into the driver’s side and they left. A Black man was in the rear seat. The first car was silver gray. Later a different car, green-colored, stopped by the officer.

The driver got out and picked up the gun. At the grand jury hearing Shannon identified Cummings as the man who picked up the gun, and Pamela as the driver of the car. 7. Rose Marie Perez was a passenger in a car driving on Gladstone and passing the intersection of Hoyt Street. She looked up Hoyt Street and saw Officer Verna falling backwards. She also saw a light-skinned Black man coming around the back of a car, walking toward the officer.

She did not see anything in his hands and did not initially identify Gay as that man at trial, but she had identified him from a photograph at the grand jury hearing and in person at the preliminary hearing. She had also done so earlier in photographs displayed by investigating officers. On redirect examination she testified that at trial Gay’s appearance was neater and he had a haircut which removed some sun-bleached hair. He was the same man she had identified earlier, however. Perez had also seen a person seated in the backseat of the car, but did not see him leave the vehicle.

That person had hair similar to that depicted in a photograph of defendant Cummings. 8. Gail Beasley, whose preliminary hearing testimony was admitted at trial, had been in her home in the 12000 block of Hoyt Street, the same house in which witness Marsha Holt had been, when she saw Officer Verna stop the car driven by Pamela and talk to her. She looked again when she heard two gunshots. She saw a Black man with very light skin, six feet tall, with a “gericurl," holding a gun with his arm extended at a forty-five-degree angle, shoot the officer four times. Another man was in the backseat.

Pamela was still outside the car. Pamela Cummings testified that Officer Verna copied information from the check cashing card she gave him for identification onto a field interrogation card. After Officer Verna learned she had no driver’s license or registration for the car, and she told him that the other occupants were her husband and her cousin, Verna returned to the car. He bent down, putting his hands on his knees, and leaned in.

Pamela, who was then standing near the curb, with the car between herself and the officer, heard a gunshot, saw Verna grab his shoulder, and simultaneously saw the barrel of a gun point straight across the front seat of the car and between the head rests. She could not see who held the gun as Cummings, sitting in the back, obstructed her view. Gay then got out of the car, approached Verna and fired three shots into his back as he attempted to return to his motorcycle. The officer turned back toward his motorcycle, walked back a few feet, fell on his knees, and then turned and fell on his back.

Gay stood over Verna, shot him two more times, threw the gun on his body, and picked up the officer’s gun. She and Gay reentered the car through the driver’s side door. Gay drove up the street, made a U-turn, and retrieved the gun. Before offering the testimony of those eyewitnesses to the shooting, the People offered evidence of admissions and confessions of the defendants which supported the prosecution theory that although a single gun had been used each defendant had used it to shoot Officer Verna.

Pamela testified that on the night of the murder Gay and Cummings each reenacted the shooting in Robin’s bedroom to show Robin what had happened. Gay extended his arm as if holding a gun and said, “Pow, pow, motherfucker. Take this,” and said that he “got him good.” Cummings used the same words in his reenactment. Prior to the reenactment, Gay had said, “I got him good.” At the preliminary hearing Pamela testified that Cummings also made that statement. At trial she denied that he did so.

Gilbert Gutierrez testified that in June 1983, while he was being held on a murder charge and was alone in a holding cell with Cummings, Cummings told him that he, Gay, and Pamela were on their way to “score some cocaine” at the time they were stopped by Officer Verna. When Officer Verna asked him if he had any identification he, Cummings, said he did, pulled out a .38-caliber revolver, and shot the officer in the shoulder.

Cummings told Gutierrez that he then got out of the car from the driver’s side, shot the officer twice in the back, and then when the officer turned over, shot him again, emptying the gun and said: “There’s your fucking I.D.” Gutierrez testified that Cummings was proud of shooting Officer Verna and bragged about it. Although Gutierrez had sought special consideration for his testimony and had been told by another inmate how to earn favor by informing, he had not been promised any benefits.

He testified even though he had already been convicted because Cummings had made death threats against Gutierrez and his family. Before Gutierrez spoke to Cummings, he had talked to Gay three times about the events. On the first occasion Gay said that Cummings shot the officer with the first shot coming from the back seat of the car, the second shots after Cummings got out of the car when Cummings shot Verna twice, after which Cummings emptied the gun.

Cummings also told Gutierrez that he fired the first shot while in the car, the second ones when he stepped out and shot twice, and then emptied the gun into the officer who was on the ground, saying, “Here’s your identification, motherfucker.” Cummings told Gutierrez that he had thrown his gun down and picked up the officer’s gun, and that Gay had recovered the gun used by Cummings when they went back. That was why some witnesses thought Gay did some of the shooting. It was all right with Cummings if the blame was put on Gay.

Alfred Montes, who had been a trustee while he and Cummings were both confined in the county jail prior to the trial of defendants, testified that Cummings had asked him to deliver two letters to Gutierrez and to tell Gutierrez that if Gutierrez testified against Cummings, Cummings would kill Gutierrez’s mother. Cummings also asked Montes to tell Gutierrez, “I don’t have nothing to lose. I killed a cop that had medals of valor.” Montes delivered the letters to Deputy Ponce.

Detective Holder, to whom Gutierrez had reported Cummings’s statements, testified that another inmate, Michael Kanan, had reported a different conversation with Cummings to Holder on September 6, 1983. Holder had made a written record of his conversation with Kanan. He read this document only to Cummings’s jury. That document recited that Cummings told Kanan that he and Gay discussed what to do after the traffic stop by Officer Verna since they were wanted for the robberies, were driving a stolen car, and Cummings was armed.

Gay said they should kill the officer, but refused to do it himself, so Cummings shot the officer. Cummings said that he “got off on the motherfucker and he fell like a trick. Then homeboy went off and filled the motherfucker full of lead.” Kanan’s recitation of Cummings’s statement included information which Detective Holder believed was known only to the persons in the vehicle which Officer Verna had stopped—in particular that the group was en route to “score some coke.” Pamela, Gay, and Billy Sims subsequently gave Holder the same information about their purpose.

Deputy Sheriff McMullan testified that on July 27,1984, in the central jail as he and Sergeant Arthur were escorting Cummings, Cummings responded to taunts of other inmates who were chanting “dead man walking” as Cummings went by. Cummings said: “I am no ghost. The only ghost I know is Verna. I put six in him.” As he was put in his cell, Cummings stated to Sergeant Arthur: “He took six of mine .... If I see you all on the streets I hope you are quicker than Verna.” Deputy Sheriff McCurtin testified that on April 9, 1984, he was watching Cummings and other inmates in the jail shower.

As a deputy walked by inmate Brooks said, “There is Paul Verna,” after which Brooks and Cummings extended their right arms as if shooting a pistol and said “Pow, Pow.” Cummings then said to McCurtin: “Let me show you how it was done. This is how it was done. First two in the back. Pow, pow. Walked up and four more. Pow, pow, pow, pow.” Cummings’s arm was then pointing down at the ground.

On cross-examination the witness quoted defendant Cummings as having said: “Then we put four more.” (Italics added.) Deputy Sheriff LaCasella testified that he had escorted defendants from the courtroom to the main lockup on April 10, 1985. On that date the deputy medical examiner had testified regarding the post mortem examination of Officer Verna, stating that he had numbered the bullet wounds in the order he examined them from one through six. Deputy LaCasella placed Cummings in cell 8 and Gay in cell 9.

He later heard Cummings yell: “You know how he got number six don’t you?” Gay then replied: “Number six?” Cummings said “yeh,” and then yelled: “That’s the one I put in the motherfucker.” In addition to evidence regarding the robberies in which defendants were implicated, the People offered evidence that earlier on the day Officer Verna had been shot, Cummings had stolen a Mercedes automobile. That evidence was relevant to motive and, inferentially, premeditation and deliberation.

It showed that, accompanied by Gay and Pamela, Cummings had taken that car to a house owned by his grandmother, in which Janet Mays, his former sister-in-law, was living, to conceal the car in a garage. Mays testified that she saw Cummings display a handgun and heard him threaten to shoot Dwayne Norton whose car blocked the garage door, saying he would shoot anyone who got in his way, even the police. Norton testified that after Norton said he would not move the car, Cummings had displayed a revolver and had said he even killed police if they got in his way.

Pamela testified that she was present and saw the gun at that time. She had last seen it earlier in the day at the apartment of Gay and his wife where it was on the shelf on which it was usually kept. She did not know who owned it. “They” both used it. At an earlier time when she and Cummings were staying in a motel, she had handled the gun which fired when she moved it. The bullet imbedded in the wall. In May 1983, Cummings had displayed a loaded .38-caliber revolver, the same caliber gun used to shoot Officer Verna, in the presence of Deborah Cantu, Pamela’s sister.

At that time he had stated that if the police tried to get him, he would get them first. Forensic evidence supported the People’s theory that Officer Verna was first shot while leaning forward into the open, driver’s side door of the stopped car to speak to the occupants, and was shot four more times after he had fallen to the pavement. The deputy medical coroner who examined the body of Officer Verna testified that the cause of death was multiple gunshot wounds. The numbers he had assigned to the wounds related only to the order in which he had examined them.

Gunshot wound number 6, which the People theorized was caused by the first shot, suggested that the bullet entered the right side of Officer Verna’s neck, went down through soft tissue and hit the spine behind the esophagus and trachea, and then went into the left chest, through the left lung, and was recovered near the seventh left rib which was fractured. This gunshot wound differed from the other five in that it occurred at a higher level and traveled downward at a sharp angle. All of the other wounds were to the left side of the back and all went upward through the body.

Bullet number 5 had traveled through the body, hit a hard surface, and bounced back into the body. The path was consistent with an entry into the back of a person lying on the ground. The witness concluded at the time of the autopsy, without speaking to the prosecutor or any investigator and without knowledge of their theory of the case, that wound number 6 might have preceded all of the other wounds and might have been inflicted as the victim bent forward. If that wound had been inflicted first, it would have damaged the spine sufficiently to have brought the officer down quickly.

All of the wounds except number 1 were fatal wounds. Number 6 alone would have been fatal. Only wound number 6 was consistent with a shot from the backseat of the car if the officer had been leaning into the car. The other wounds were clustered in a manner which indicated that the officer was already down in a fixed position when they were inflicted. The Defense Case Cummings Cummings’s defense was principally an attempt to show through scientific evidence and otherwise that no shot had been fired at Officer Verna from the back seat of the car.

A defense pathologist whose testimony was offered by Cummings disagreed with some of the prosecution expert’s conclusions as to the track of two of the bullet wounds (Nos. 3 and 5) but agreed with the conclusions of the prosecution expert as to the track of number 6, and, based on the positioning of a mannequin, the possibility that this bullet could have been fired from within a car.

Cummings also offered an expert in forensic chemistry who testified that, based on the quantity of barium and antimony found on the victim’s jacket, wounds numbers 2,4, and 5 had been inflicted from the shortest distance and number 6 from the greatest distance. Cummings attempted to establish by cross-examination of a People’s expert that if a shot had been fired from the back seat of the car, gunshot residue would have been found on the back of the left front seat headrest.

The People offered evidence in rebuttal, in the form of testimony and photographs of an experiment in which Cummings, himself, was positioned in the car holding a gun at the angle it might have been held during the shooting, that it was possible to shoot from the backseat without leaving gunshot residue on the headrest. Gay With regard to the robberies with which he alone was being tried, and before his jury only, Gay attempted to elicit testimony from Pamela to exonerate Gay in the Poehlmann robbery. The attempt was unsuccessful. Pamela testified that he did participate in the robbery.

The count charging Gay with that robbery had already been dismissed, however. The jury was so advised and was instructed not to consider that charge. Gay’s counsel persisted in questioning the witness, asking whether she was aware that the charge had been dismissed for insufficient evidence and whether she was nonetheless saying that Gay was present. She again stated that he was there.

Billy Sims, who had participated in some robberies with Cummings and Pamela, and who testified after the prosecution granted immunity, testified about a robbery committed shortly before June 2, 1983, in which Gay had not participated, during which Cummings had pointed a pistol at the victim and hit the victim over the head with the pistol. Gay’s counsel also sought unsuccessfully to elicit testimony from the prosecution investigator, Officer Holder, that there had been an agreement that Gay’s confession to the robbery charges made during plea bargain negotiations would not be used against Gay.

Officer Holder testified that there had been no discussion and that there was no tacit understanding to that effect. Counsel also elicited Holder’s belief that in the taped interview Gay had been telling the truth when he admitted the robberies, but had lied about other matters. The murder was the other matter discussed in the taped interview. Gay then presented his defense to the murder charge, attempting to cast principal blame on Cummings. This evidence was heard by both juries, over the objection by counsel for Cummings that Gay’s defense was irrelevant and prejudicial to Cummings.

Gay called several of the eyewitnesses to the shooting as defense witnesses. Rosa Martin again testified that she saw Gay leave the car which was then driving toward the fallen officer, pick up a gun, reenter the car, and drive it away. She did not see Gay shoot anybody. Rose Perez testified that as she passed through the intersection she saw Gay walk around the rear of the stopped automobile. She did not see anything in his hand. The officer was falling down when she saw this. Pamela testified that she was sure that a shot was fired from within the car. She saw and heard the shot.

Counsel attempted to impeach her by eliciting an admission that she had lied in prior statements about the murder, by asking her about testimony by other eyewitnesses that was inconsistent with hers, and by questions designed to undermine the accuracy of her description of the events and to suggest that she was not truthful in stating that she did not know who fired the first shot. Counsel for Cummings then elicited further testimony on cross-examination that she saw Gay slide across the seat of the car, come out firing a gun, and repeatedly shoot the victim.

Penalty Phase Gay The prosecution offered the following evidence in aggravation: 1. Rose Lampinyano, who had dated Gay while in high school in 1976, testified that he had hit her during an argument. The matter had been reported to the police, but she had no present recollection of how often he struck her or whether it was with an open hand or a fist. She had told the truth in telling the police that he struck her in the back and threw her into a fence and into some bushes. She was 15 years old at the time of the incident. 2. Bruce Adams testified that in May 1978 the daughter of his neighbor was dating Gay.

He therefore recognized Gay as the man whom he saw leave the neighbor’s house and drive away from the home at 1 a.m. after barking dogs had aroused him. As Adams came out of his house he saw the front room of the neighbor’s house engulfed in flames. The neighbor’s daughter suffered serious burns on her face, hands, and legs. On the prior afternoon, Adams witnessed an argument between Gay and the victim, during which Gay threatened to burn the neighbors out. The fire was caused by a firebomb thrown through the front window of the house. The neighbor also suffered burns.

Gay was convicted of exploding a destructive device causing bodily injury and arson of an inhabited dwelling. 3. While confined in the county jail on April 27, 1984, Gay shoved a lighted torch made of newspapers and rolled up toilet paper into the face of another inmate. 4. On December 28, 1983, Gay threatened to come after a jail deputy and his family if he “beat the case,” and also threatened physical harm to the deputy if he entered his cell. 5.

Gay was one of two men who entered a business establishment on May 2, 1983, held the two employees at gunpoint, and took money from the cash register and other property from the victims. Gay offered mitigating evidence in the form of testimony by his mother that Gay was the youngest of four children. She had met and married Gay’s father, a Black man, when he was stationed in England by the Air Force in 1957. Gay was bom the same year and lived in England for the first 13 months of his life, until his father was transferred to March Air Force Base in Riverside County in 1959.

The family moved to Los Angeles in 1961 when Gay’s father left the service as a staff sergeant. Gay’s father worked briefly for an airline and then worked two jobs as a cab driver and service station attendant until he was disabled in a work-related accident in 1976. During the same time Gay’s mother was employed as a department store clerk. Gay and his siblings were cared for by a babysitter. Gay had a good relationship with his father, but he was more open with his mother. His father spanked Gay and both parents always tried to teach him right and wrong.

Gay first got into trouble while in junior high school and went to youth camp for family counseling. He did not finish high school, but he received a high school diploma while imprisoned for the arson conviction. On his release in 1982 he was employed as a welder and cook. He received a grant to assist him in attending college at California State University Northridge which he planned to attend in 1983. His interests included writing and art. Gay did not attend college as planned. He met Cummings through Pamela, whom he had known in high school, and lost interest in college at that time.

Robin married Gay in May 1983. At the time of her testimony she was serving a term for robbery and being an accessory after the fact to the murder, but she planned to obtain employment and take care of her husband on release. She believed in him and was going to stick by him all the way. She was studying word processing and business education, and she had prior employment as a patrol officer for an alarm company. During the marriage her husband had never been violent. He had never beaten or shoved her.

Ronald Jenkins, who lived in the same townhouse complex as Gay’s parents, met Gay on his release from prison in 1983 and became a friend. He encouraged Gay to apply for employment with his employer and attempted to assist him in other ways. He thought Gay was a quiet and lonely person who was a follower rather than a leader. Jenkins had never seen Gay beat anyone. Gay’s mother-in-law testified that Gay was always a gentleman in her home. He was good to her grandson. Although Gay and Robin had arguments, Gay never beat his wife.

Fred Weaver, M.D., a psychiatrist, had examined Gay after having his staff psychologist undertake comprehensive testing. He had also reviewed the reporter’s transcripts and police reports. Based on the information he obtained he concluded that Gay had a difficult childhood because of his mixed racial background. Gay felt that he had no relationship or identification with either race, had to fight both, and felt alone and isolated. His father had abused him. All of this and his close relationship with his mother created problems with authority and led to Gay’s difficulties with the law beginning at age 13.

Gay reacted positively to a closely controlled environment, however. It was the opinion of the witness that Gay functioned better in a restricted environment. He would be considered a sociopathic personality under an old classification, and such persons respond to structured and controlled environment. Today the diagnosis would be antisocial personality. Gay had not created problems before while incarcerated and he would probably still be that way if sentenced to life without possibility of parole.

The witness emphasized the condition that the sentence was without possibility of parole, explaining that he would have genuine concerns about Gay being back on the street. Gay’s cousin, Richard Kelley, who had known Gay all of his life, spent summers at Gay’s home when the two were teenagers. Gay was an “alright” person, thoughtful, and always willing to give his time and share with others. Claudette Barber had worked with Gay’s mother. She met Gay when he was 10 years old. He often came to her home and played with her children. He was a nice, obedient little boy.

Jeanne DeLouth was a neighbor who had known Gay since 1972. He played with her sons for almost five years until her family moved. He obeyed her and as far as she knew was never in serious trouble. Cummings The prosecution offered the following evidence in aggravation: 1. While confined in the county jail awaiting trial for the murder Cummings had in his possession a stabbing implement, a “shank.” 2. On May 23, 1983, Cummings and another person robbed two employees of a business establishment at gunpoint, taking money from the cash register and the wallet of one victim.

Cummings threatened to kill the victims if they identified the robbers to the police. 3. While confined in the county jail awaiting trial Cummings concocted a plan to kill Gay and Robin by sending them postage stamps laced with cyanide. He sought the assistance of Jackie Flores, the inmate in an adjacent cell who Cummings believed had connections on the outside.

He told Flores that Robin had testified before the grand jury and that Gay was “ratting on him.” Flores became a feigned accomplice, notified jailers of the plot, and passed on to Cummings stamps which he told Cummings had cyanide on them, but which had been treated by a police technician with a dye that was visible only under ultraviolet light. Cummings sent two of the stamps to Robin with a friendly letter asking her to reply. The stamps were seized when delivered to Robin. In response to a question on cross-examination, Flores testified that he had not contacted authorities immediately about Cummings’s plan.

He did so when Cummings also expressed an intent to break out of jail and to kill two deputies in the van on the way to jail. Cummings also sought Flores’s assistance in obtaining guns and grenades. Cummings offered mitigating evidence of his family background. His older brother, Darrell, testified that Cummings was the middle brother of three. Their father had been employed by Chrysler for about 30 years. Their mother had been employed as a clerk/typist by the department of social services for about 12 years during their childhood. After that she operated a foster home for girls on probation.

Both parents, but primarily their father, administered discipline. Their father did, two or three times a week, using a belt with which he hit the children on the bottom and thigh area ten times. A big man, he hit extremely hard. He also used an extension cord on defendant, leaving scars. Their father never expressed any affection to the brothers. Their father beat them any time an adult accused them of misconduct, without investigating the truth of the charge. Often the beatings were not warranted. Cummings’s grandmother had whipped the boys’ father, and had also practiced voodoo.

Their father believed she had those powers and sprinkled powders she gave him around the house. There seemed to be a continual power struggle between their mother and grandmother for control of their father. While the children were present their parents regularly fought physically, using fists, knives and items of furniture. Cummings was 13 years old when his mother stabbed his father. He did not understand the fights, and was a passive, introverted, boy. Darrell used bats and other weapons to protect Cummings from other people.

After their parents separated, when Cummings was 13 years old, their mother became bitter, stopped attending church, and drank to excess. She invited strangers to the house for parties, and neglected household responsibilities which Darrell had to take over. She stopped taking Cummings to a tutor who had been helping him with homework and had played basketball with him. Cummings had excelled in sports until his leg was broken when an automobile hit his motorcycle. An infection almost caused amputation of the limb, and it continued to cause him problems.

Cummings joined his father in Delaware when he was 17 or 18 years old. He went to prison in that state when he was 18 or 19, and was not released until he was 26 years old. On his return to California he was very different. Sonja Walker, who had been Cummings’s girlfriend for five or six years beginning when they were in junior high school, saw Cummings’s mother in an intoxicated condition on two occasions. Cummings spent more time at her home than his own and at one time moved in with them because he was not getting along with his mother. He was embarrassed and would not talk about the situation.

Their relationship ended when Cummings’s mother took him away. III. Pretrial Issues A. Venue Both defendants contend on appeal that the trial court erred prejudicially in denying their motions for a change of venue to another county or, in the alternative, to another judicial district within Los Angeles County. The basis for the motions was a claim that extensive media coverage threatened to, and did, deny defendants their right under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution to a fair trial by an impartial jury.

The evidence offered in support of the motions established that from June 1983 until the motions were heard in May 1984, there had been extensive coverage of the murder and subsequent investigation in both San Fernando Valley and Los Angeles newspapers, and on two television stations. In addition to factual reports about the murder and ensuing investigation, the media coverage included articles about the victim, his acts of valor during his 14 years as a police officer, his exemplary character, and the reactions of his family and friends to his murder.

The prosecution theory of the case was reported, as were Gay’s attempted suicide shortly after his arrest and Cummings’s escape and poison schemes. Although the coverage was primarily factual, in May 1984 the Daily News printed an opinion column characterizing the defendants as “murderers” and peace officers as defenders of society. Other articles included what might be characterized as opinion and editorial comment. The trial court did not find defendants’ showing sufficient to mandate a change of venue and postponed final decision on the motions for change of venue until jury selection.

The motions were denied when the selection process established to the satisfaction of the judge that few prospective jurors were aware of any facts about the incident and those who recalled reading or hearing about it would be able to decide the case solely on the basis of the evidence offered at trial. Subdivision (

a) of

section 1033 commands that a superior court order a change of venue in a criminal case “when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” An appellate court reviewing the denial of a motion for change of venue must make an independent assessment of the evidence we have determined should control the right to a change of venue: “the gravity and nature of the crime, the extent and nature of the publicity, the size and nature of the community, the status of the victim, and the status of the accused.” (People v.

Balderas (1985) 41 Cal.3d 144, 177 [222 Cal.Rptr. 184, 711 P.2d 480].) When the issue is raised on appeal, however, the court must also determine whether the pretrial publicity actually had a prejudicial effect, i.e., that it denied the defendant a fair trial by denying him the right to a fair and impartial jury. (Id., at pp. 179-180; People v. Proctor (1992) 4 Cal.4th 499, 523 [15 Cal.Rptr.2d 340, 842 P.2d 1100]; People v. Harris (1981) 28 Cal.3d 935, 950 [171 Cal.Rptr. 679, 623 P.2d 240].) Having reviewed the record, we find no error.

Even assuming arguendo that there was error it is clear that there was no prejudice. There was no reasonable likelihood at the time the motions were denied that defendants could not obtain a fair trial, and defendants have not shown a reasonable likelihood that, as a result of the denial of a change of venue, a fair trial was not had. (People v. Douglas (1990) 50 Cal.3d 468, 495 [268 Cal.Rptr. 126, 788 P.2d 640]; People v. Williams (1989) 48 Cal.3d 1112, 1126 [259 Cal.Rptr. 473, 774 P.2d 146].) The offense was committed in the state’s most populous county.

The jury was selected from a radius of 20 miles from the courthouse located in San Fernando Valley thus assuring selection from a population which exceeds that of most counties. The publicity was primarily factual, not sensational, and, notwithstanding the gravity of the offense, the number of news articles and the television coverage were relatively minimal at the time of jury selection and trial. Although the victim was a well-liked police officer and his status was emphasized in the news coverage, he was not a prominent person in the community. Defendants were not strangers in the community.

The trial court did not err in denying the motions for change of venue at the time they were made. We are also satisfied that the actual process of jury selection did not mandate either a change of venue or a transfer to another judicial district. Very few prospective jurors were excused on the basis of answers to a questionnaire or questions on voir dire stating that prior knowledge of the cause would prevent them from being fair.

While the judge herself expressed surprise at the lack of knowledge members of the panel had about the case, we note that jury selection took place a year and one-half after the murder. Six of the jurors before whom Gay was tried and seven of the jurors before whom Cummings was tried had heard nothing of the case. There was no reason to question the assurances given by the remaining jurors that they could be fair and impartial, as evidenced by the failure of defendants to utilize peremptory challenges to remove any of those jurors. The Constitution requires no more. (People v.

Daniels (1991) 52 Cal.3d 815, 853-854 [277 Cal.Rptr. 122, 802 P.2d 906].) B. Representative Cross-section. Defendants moved to quash the venire (see People v. Bell (1989) 49 Cal.3d 502, 520, fn. 3 [262 Cal.Rptr. 1, 778 P.2d 129]) from which their juries were selected. In support of the motion they presented statistical evidence of disparity between the number of Black, Hispanic, and poor persons on the venire and those presumptively eligible for jury service within a 20-mile radius of the North Valley courthouse and within Los Angeles County as a whole.

They attributed the disparity to the use of only the voter registration list and Department of Motor Vehicles registration list as the sources of potential jurors and to the practice of assigning persons to courthouses other than North Valley if those courts were also within a 20-mile radius of the prospective jurors’ homes.

They also claimed that the manner in which the lists were used caused geographic disparity which denied random selection and that excusal and disqualification procedures, as well as failure to establish follow-up procedures to compel the appearance of persons who fail to respond to questionnaires and/or jury summons, contributed to the underrepresentation of those groups. After receiving evidence from both sides, the trial court found that the criteria for hardship exemption employed by the jury commissioner did not result in constitutionally objectionable underrepresentation.

The court concluded that, using unrefined statistical data, defendants had made out a prima facie case of underrepresentation of Blacks and Hispanics which were cognizable groups, ruled that an economic group is not a cognizable group for Sixth Amendment underrepresentation purposes, and found that the People had rebutted the prima facie case using population data that was limited to presumptively jury eligible persons. The People also justified any disparity by establishing that it was caused by permissible factors and practical necessity.

Without explanation or support, Gay argues that the trial court erred in concluding that defendants’ prima facie case had been rebutted. Cummings purports to reserve a right to present his arguments in a petition for writ of habeas corpus in which he proposes to offer evidence to demonstrate the disparity between Blacks and Hispanics appearing in the venire and the representation of presumptively jury eligible members of those groups in the North Valley Judicial District.

Each appellant claims that a remand should be ordered, and Cummings attempts to reserve the issue, on the basis that this court decided subsequent to this trial that the relevant community for comparison in Los Angeles County is the superior court judicial district. (Williams v.

Superior Court (1989) 49 Cal.3d 736, 744-746 [263 Cal.Rptr. 503, 781 P.2d 537].) As the People note, however, data regarding the Black and Hispanic population of the North Valley Judicial District is irrelevant in light of the trial court’s unchallenged finding that there was no “systematic exclusion,” i.e., that the procedures employed by the jury commissioner and the bases for excusing those group members whose excusal was the probable cause of the disparity were constitutionally permissible. (See People v. Bell, supra, 49 Cal.3d 502, 529; People v.

Morales (1989) 48 Cal.3d 527, 548-549 [257 Cal.Rptr. 64, 770 P.2d 244].) C. Exclusion of Jurors Opposed to Capital Punishment. Seventeen prospective jurors were excused for cause based on their opposition to capital punishment. Defendants argue that of those 17, 4 did not express unequivocal opposition or inability to impose the penalty of death in any case and were, therefore, excused improperly. Cummings claims that a fifth prospective juror was also excused improperly.

Defendants argue that excusing these jurors denied defendants both the fair trial guaranteed by the Fourteenth Amendment and their Sixth Amendment right to a jury drawn from a fair cross-section of the community. The second claim has been repeatedly rejected by this court. (People v. Fields (1983) 35 Cal.3d 329, 349-353 [197 Cal.Rptr. 803, 673 P.2d 680].) Defendants offer no basis for reconsideration of those decisions. We reject the first claim.

Excusing a juror who expresses opposition to the death penalty is constitutionally permissible if the juror’s views “would prevent or substantially impair the performance of his duties as a juror in accordance with his oath.” (Morgan v. Illinois (1992) 504 U.S.___,_ [119 L.Ed.2d 492, 502, 112 S.Ct. 2222]; Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844]; People v.

Coleman (1988) 46 Cal.3d 749, 764-765 [251 Cal.Rptr. 83, 759 P.2d 1260].) It is not necessary that it be “unmistakably clear” that he or she will “automatically” vote against the death penalty regardless of the evidence, however. (See Witherspoon v. Illinois (1968) 391 U.S. 510, 522-523, fn. 21 [20 L.Ed.2d 776, 785, 88 S.Ct. 1770]; People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250].) When the statements of a prospective juror are conflicting or ambiguous, a trial court’s assessment of the juror’s state of mind binds this court. (People v.

Mason (1991) 52 Cal.3d 909, 954 [277 Cal.Rptr. 166, 802 P.2d 950].) Juror Loboda stated that due to his religion he was against the death penalty and that while he would follow the instructions of the court and would listen to the case, as of the time the voir dire was conducted there was no chance that he would vote for the death penalty.

Although he gave conflicting and ambiguous answers to questions by counsel, he responded “yes” to a final question by the court: “[D]o you feel you would automatically impose life without possibility of parole regardless of what evidence was presented at the penalty phase.” Juror Stewart had always been opposed to capital punishment, but initially stated that she could impose the death penalty in an “awfully horrendous” case.

She continued to make it clear, however, that she did not believe in capital punishment, and she said if there was a choice between life without possibility of parole and death, the former would be the most extreme that she could do. Pushed, she said that she would “probably” vote automatically for life without parole regardless of the evidence. That she gave the same response to a subsequent question by the prosecutor directed to a case involving the murder of a policeman does not detract from the position she had taken earlier.

Juror Stewart, like others among those whose excusal is challenged, did say that she could be fair and that she would listen to the evidence. The trial court could reasonably conclude, however, that having listened to the evidence, there was no realistic possibility that she would ever vote for imposition of the death penalty. Juror Samaniego also agreed that he would listen to the evidence. He also said repeatedly, however, that he did not think he could vote for death, would probably vote for life without parole, and felt that he would automatically vote for that penalty regardless of the evidence.

He would listen to the evidence and he would consider the death penalty, but he did not know if he could actually vote for it. When pressed for a more specific reply he said, “The answer is no.” Finally, in response to the court’s attempt to clarify his position, when asked if he would automatically vote for life without parole if the jury had found first degree murder of a peace officer in the performance of his duties, he replied, “Yes, ma’am.” Similarly, Juror Capozzi believed he would vote for life without parole.

He said initially that he could listen to the evidence and then determine which penalty was appropriate although voting for death would “weigh” on him. Ultimately, however, he said he probably could not vote for the death penalty. He, too, responded to clarifying questions by the court that he felt he would vote for life without parole and believed he could never vote for the death penalty. Juror Noel opposed the death penalty. She stated initially that she would automatically choose life.

In response to questions of counsel she said she could , listen to the evidence, consider whether the death penalty or life without parole would be appropriate, and vote her conscience on whatever she felt would be the proper penalty. Nothing in her response suggests, however, that her conscience would permit her to vote for death.

In her case, as in those above, defendants elicited a willingness to listen to the penalty phase evidence and to consider which penalty would be appropriate, but counsel did not ask the dispositive question—whether the juror, having done so and concluded that death was appropriate, would vote for that penalty notwithstanding his or her previously expressed inability or unwillingness to do so. The jurors’ answers were conflicting and ambiguous. The trial court’s decision to excuse them, made prior to the decision of Wainwright v.

Witt, supra, 469 U.S. 412, reflects an implicit conclusion that each would automatically vote against the death penalty regardless of the evidence. That conclusion is supported by the record, and necessarily establishes that the jurors’ views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id., at p. 424 [83 L.Ed.2d at pp. 451-452].) Gay’s claim that it was improper to explore the attitude of the jurors toward the case before them during the death qualification voir dire lacks merit.

Although the court need not permit such questioning at that stage of the voir dire, a juror’s attitude toward the case is not, as Gay asserts, irrelevant to a challenge for cause. (People v. Pinholster (1992) 1 Cal.4th 865, 916-917 [4 Cal.Rptr.2d 765, 824 P.2d 571]; People v. Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127].) D. Peremptory Challenges—Cummings’s Jury. Cummings also claims that he was denied a jury drawn from a representative cross-section of the population in violation of his rights under the Sixth Amendment of the federal Constitution and

article I,

section 16 of the California Constitution when the trial court erroneously permitted the prosecutor to exercise peremptory challenges to two Black jurors. He contends that he made a prima facie showing that Black jurors were being excused by the prosecutor on the basis of group bias, that the prosecutor’s justifications were pretextual, and that the court failed to adequately scrutinize those justifications. (See People v. Wheeler (1978) 22 Cal.3d 258, 276-278 [148 Cal.Rptr. 890, 583 P.2d 748].) Following the Hovey voir dire (Hovey v.

Superior Court, supra, 28 Cal.3d 1) four persons identified as Black were among the prospective jurors on the panel from which Cummings’s jury was drawn. Of these, one was excused by the court over Cummings’s objection on grounds of personal hardship. One served as a juror. The prosecutor exercised peremptory challenges to excuse the other two jurors, Leon Passmore and Clarence Broussard. In response to Cummings’s objection to the prosecutor’s exercise of his third peremptory challenge to excuse Passmore, the court ruled that he had not made a prima facie case that group bias motivated the challenge.

During the selection of alternate jurors, the prosecutor exercised his 18th peremptory to challenge Broussard. Cummings made another Wheeler-based motion to quash the panel, the court asked the prosecutor for his reasons for challenging the two Black jurors, and, after hearing the response, denied the motion. The prosecutor assumed that by inquiring, the trial court had implicitly determined that a prima facie case sufficient to require justification had been made by Cummings, and Cummings urges that reasoning here.

We need not decide that threshold question, however, because we agree with the People that the prosecutor adequately justified his actions. With respect to Passmore he explained that the prospective juror lived in Lakeview Terrace, might know some witnesses whose names were not yet available, and might know either the paramedic who treated the murder victim or another who was to be a witness, had indicated on his juror questionnaire that the defendant might know him, and had acknowledged that persons he supervised at work knew Cummings and he had heard about Cummings’s background from fellow employees.

With respect to Broussard, whom the prosecutor had not questioned extensively during the earlier voir dire, the prosecutor explained that the prospective juror’s opposition to the death penalty was a factor. Broussard’s brother had been convicted of a crime and may have been prosecuted by another deputy in the same office. Broussard had said he was not sure his brother was guilty, and Broussard appeared to give the prosecutor “dirty looks.” In addition, both prospective jurors appeared to be friendly with prospective Juror Redmond and might feel some resentment that he had been excused.

The trial court ruled that there had been “effective showing of why the peremptories were utilized in this case, and there has been no showing of group bias.” We agree. The prosecutor offered adequate justification, unrelated to group bias, for the exercise of peremptory challenges. (People v. Sandoval (1993) 4 Cal.4th 155, 174-175 [14 Cal.Rptr.2d 342, 841 P.2d 862]; People v. Johnson (1989) 47 Cal.3d 1194, 1221-1222 [255 Cal.Rptr. 569, 767 P.2d 1047]; People v. Wheeler, supra, 22 Cal.3d 258, 277, fn. 18.) It was not necessary for the court to make additional inquiry.

There is no basis in the record for the assertion that the court failed to scrutinize the prosecutor’s reasons to determine if they were pretextual. (People v. Johnson, supra, 47 Cal.3d at p. 1222; cf. People v. Turner (1986) 42 Cal.3d 711 [230 Cal.Rptr. 656, 726 P.2d 102]; People v. Hall (1983) 35 Cal.3d 161 [197 Cal.Rptr. 71, 672 P.2d 854].) E. Severance/Dual Juries. The trial court denied motions by Gay to sever the robbery and murder counts, and by both defendants for separate trials on the murder count.

The court denied Gay’s motion to sever the robbery counts and ordered that each defendant be tried by a separate jury instead of ordering a complete severance of defendants. Both juries heard evidence relevant to the murder and special circumstances charges. The Gay jury also heard evidence relevant to the robberies with which he was charged. Some evidence of Cummings’s participation in robberies was also heard by his jury to establish that he had a motive to kill Officer Verna. Penalty phase evidence was presented separately to each jury.

Both defendants argue that the court’s denial of their motions for complete severance and the impanelment of dual juries instead was prejudicial error. Each offers reasons for prejudice in his own case. 1. Gay: Severance of robbery counts. The robbery and murder counts were properly joined. (§ 954; People v. Johnson (1988) 47 Cal.3d 576, 587 [253 Cal.Rptr. 710, 764 P.2d 1087].) Therefore, Gay had the burden to clearly establish a danger of prejudice sufficient to warrant severance. (People v. Sandoval, supra, 4 Cal.4th 155, 173; People v.

Bean (1988) 46 Cal.3d 919, 938 [251 Cal.Rptr. 467, 760 P.2d 996].) Denial of a severance motion may be an abuse of discretion if the evidence related to the joined counts is not cross-admissible; if evidence relevant to some but not all of the counts is highly inflammatory; if a relatively weak case has been joined with a strong case so as to suggest a possible “spillover” effect that might affect the outcome; or one of the charges carries the death penalty. (Frank v. Superior Court (1989) 48 Cal.3d 632, 639 [257 Cal.Rptr. 550, 770 P.2d 1119]; People v.

Balderas, supra, 41 Cal.3d 144, 173.) Gay claims that considerations favoring severance were present in his case, but the trial court failed to give his motion the careful scrutiny required in a capital case. To the contrary. Review of the record makes it clear beyond any doubt that the trial court gave full consideration to all of the arguments for severance of counts and defendants, considered the options available, and, only after doing so at several stages prior to trial, denied the severance motions and elected the dual jury procedure.

Gay argues that severance of the robbery and murder counts was mandated because the evidence to be offered on those charges was not cross-admissible. He asserts that the robbery evidence was not relevant to any issue in the murder prosecution and was highly inflammatory; as evidence of motive that might be relevant to deliberation and premeditation it was speculative and cumulative; and the evidence identifying Gay as the robber in the several crimes for which he was tried was weak and made his conviction of both the robberies and the capital offense more likely. We disagree on all points.

The trial court did not abuse its discretion in denying the motion to sever the robbery counts. The court ruled that evidence of the robberies would be admissible on trial of the murder charge to establish the motive for the killing of Officer Verna. The motive, avoiding arrest, was circumstantial evidence of premeditation and deliberation, both of which are elements of first degree murder, and motive was itself an element of the special circumstance of murder for the purpose of avoiding arrest.

It is true, as Gay claims, that evidence of the murder might not have been admissible at a separate trial of the robbery counts, but complete cross-admissibility is not necessary to justify joinder. (People v. Mason, supra, 52 Cal.3d 909, 934.) The state’s interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence. (People v.

Walker (1988) 47 Cal.3d 605, 622-623 [253 Cal.Rptr. 863, 765 P.2d 70].) Although, as Gay now argues, some of the robbery victims did not identify him at trial, the propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard. (People v. Price (1991) 1 Cal.4th 324, 388 [3 Cal.Rptr.2d 106, 821 P.2d 610]; Frank v. Superior Court, supra, 48 Cal.3d 632, 640; People v.

Johnson, supra, 47 Cal ,3 d 576, 588.) At that time it appeared that the evidence that Gay participated in the robberies with which he was charged would be quite strong since it was to be introduced through accomplice testimony. And, notwithstanding Gay’s claim that his taped confession was erroneously admitted, it is clear that he suffered no prejudice in the jury determination of his guilt of the robberies as a result of joinder with the murder charge.

Since he was also identified as a participant by several eyewitnesses to the murder, we see no possibility that the jury was improperly influenced by the evidence of the robberies in finding him guilty of murder. Gay’s final claim, that he was prejudiced at the penalty phase of the trial because joinder allowed the jury to hear evidence of one robbery count that was dismissed, is not persuasive. Even assuming error in denial of the motion to sever the robbery and murder counts, there was no prejudice.

The number of other robbery counts and the nature of the aggravating evidence obviate any possibility that this evidence played a

part in the penalty determination. 2. Severance of defendants; dual jury. Gay claims that the court was aware when his motion was denied that extrajudicial statements of Cummings implicating Gay would be offered; that the testimony of Deputies McCurtin and LaCasella on cross-examination by Cummings, and of Pamela, did put such evidence before his jury in violation of the “Bruton/Aranda rule” (Bruton v. United States (1968) 391 U.S. 123, 137 [20 L.Ed.2d 476, 485-486, 88 S.Ct. 1620]; People v. Aranda (1965) 63 Cal.2d 518, 526 [47 Cal.Rptr. 353, 407 P.2d 265]) and People v.

Graham (1969) 71 Cal.2d 303, 331 [78 Cal.Rptr. 217, 455 P.2d 153]; and that the court’s limiting instructions were not adequate to prevent prejudice. Cummings argues that the dual jury procedure necessarily caused each jury to fear that the other might acquit the defendant whose case the other jury had heard, and thus his jury would be motivated to convict to ensure that someone would be punished for the killing. Cummings also claims that because the prosecutor relied on a “two shooter” theory each defendant had an incentive to attempt to shift all of the blame for the murder to the other.

As a result of the inconsistent defenses and strategies of the defendants, coupled with what both defendants claim was incompetent representation of Gay by his attorney, Cummings was denied a fair trial. Gay’s attorney became a “gratuitous” second prosecutor who elicited evidence that was not only harmful to Gay, but also harmed Cummings. Granting separate trials is a matter committed to the sound discretion of the trial court.

Antagonistic defenses alone do not compel severance. “The court should separate the trial of codefendants ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ ” (People v. Turner (1984) 37 Cal.3d 302, 312 [208 Cal.Rptr. 196, 690 P.2d 669], quoting People v. Massie (1967) 66 Cal.2d 899, 917 [59 Cal.Rptr. 733, 428 P.2d 869]. See also Zafiro v.

United States (1993)_U.S. _ [122 L.Ed.2d 317, 113 S.Ct. 933].) Defendants’ claim that several of these considerations were present and mandated complete severance lacks merit. There was no danger of confusion from multiple counts. The joint trial involved only the murder count. Since defendants were crime partners in several of the robberies and in the murder, prejudicial association with a codefendant is not a factor.

There is no evidence that either defendant would have offered testimony exonerating the other had they been tried separately Only their inconsistent defenses and the anticipated introduction of extrajudicial statements in which defendants implicated each other suggested that severance might be necessary. The trial court elected the dual jury procedure in recognition that some of that evidence would not be admissible against the nonspeaking defendant. The inconsistent defenses alone did not mandate complete severance. The use of dual juries is a permissible means to avoid the necessity for complete severance.

The procedure facilitates the Legislature’s statutorily established preference for joint trial of defendants and offers an alternative to severance when evidence to be offered is not admissible against all defendants. (§ 1098; People v. Harris (1989) 47 Cal.3d 1047, 1075 [255 Cal.Rptr. 352, 767 P.2d 619].) Whether the court abused its discretion by denying complete severance and impaneling separate juries is decided on the basis of the facts known at the time of the ruling on the severance motion.

At the time this ruling was made the prosecution did not intend to use any statements by Cummings which incriminated Gay. When the trial court’s denial of severance and impanelment of dual juries is urged as error on appeal after trial, however, the error is not a basis for reversal of the judgment in the absence of identifiable prejudice or “gross unfairness . . . such as to deprive the defendant of a fair trial or due process of law." (People v. Turner, supra, 37 Cal.3d 302, 313. Accord, Zafiro v.

United States, supra,_U.S._[122 L.Ed.2d 317].) That defendants have inconsistent defenses and may attempt to shift responsibility to each other does not compel severance of their trials (People v. Boyde (1988) 46 Cal.3d 212, 232-233 [250 Cal.Rptr. 83, 758 P.2d 25]), let alone establish abuse of discretion in impaneling separate juries. Here, as in Boyde, the defense positions were antagonistic because the identity of the killer was disputed by defendants.

That each was involved in the incident was undisputed, however, and the prosecution had offered evidence sufficient to support verdicts convicting both defendants. As the People observe, this was not a case in which only one defendant could be guilty. The prosecution did not charge both and leave it to the defendants to convince the jury that the other was that person. Here the prosecution theory was that both defendants participated in, and were guilty of, the murder.

Most of the additional evidence each defendant offered to support his attempt to shift blame to the other would have been admissible had the prosecution sought to offer it. In these circumstances there was no abuse of discretion in denying complete severance and no prejudice as a result of joint trial on the murder charge before separate juries. Although the Gay jury did hear three extrajudicial statements by Cummings which arguably implicated Gay, there was no gross unfairness to either defendant.

Indeed, by impaneling separate juries for defendants the trial court acted to minimize any impact the defendants’ respective trial strategies might have on the other defendant. The jury trying each defendant was fully aware that the other was attempting to avoid his own responsibility by shifting blame. Each jury heard only the closing argument of the defendant whose guilt it was to decide, and each was able to determine guilt solely on the basis of the evidence relevant to that defendant. IV. Guilt Phase Error—Murder Count A. Evidentiary Rulings. 1. Mays/Norton testimony.

Cummings contends that the evidence regarding his threat to Dwayne Norton on the afternoon before the murder was inadmissible under subdivision (

a) of Evidence Code

section 1101 as evidence of prior bad acts. The evidence was not, however, offered as evidence of Cummings’s character or to prove his conduct at the time of the murder, and it was highly relevant. Evidence that Cummings was in possession of a handgun and had threatened to kill any policeman who got in his way went to his motive for shooting Officer Verna and thus to the elements of intent, premeditation and deliberation. It was also relevant to the purpose element of the special circumstance of killing to avoid arrest.

The time frame was such that a jury could reasonably infer that the intent to kill police officers stated at that time still existed at the time of the killing. (People v. Lang (1989) 49 Cal.3d 991, 1014-1015 [264 Cal.Rptr. 386, 782 P.2d 627]; People v. Karis (1988) 46 Cal.3d 612, 636-637 [250 Cal.Rptr. 659, 758 P.2d 1189].) Cummings also argues that the evidence was more prejudicial than probative. (Evid. Code, § 352.) He did not expressly object on that ground.

The trial court apparently inferred that this objection was encompassed in the stated objection and argument of counsel and made an express ruling, in overruling the objection, that the threats and possession of the gun were highly probative. Assuming that the objection was properly made, we agree that the evidence was highly probative. 2. Testimony of Deputy LaCasella. Cummings objected to the testimony of Deputy LaCasella regarding the incriminating statements by Cummings which LaCasella had overheard. LaCasella had been acting as a courtroom bailiff prior to the decision to call him as a witness.

Cummings objected to admission of his testimony on grounds that admitting the testimony of a trusted court officer, who had been involved in seating and escorting the jurors and relaying juror messages to the court, would deny due process and a fair and impartial trial. Neither Turner v. Louisiana (1965) 379 U.S. 466 [13 L.Ed.2d 424, 85 S.Ct. 546], nor Gonzalez v. Beto (1972) 405 U.S. 1052 [31 L.Ed.2d 787, 92 S.Ct. 1503], on which Cummings relies, supports the broad rule he would invoke.

In Turner, the principal prosecution witnesses were two deputies who had investigated the homicide for which Turner was on trial and who acted as courtroom deputies during the trial and deliberations. They freely mingled and conversed with the jurors in and out of the courthouse. The court had not directed the deputies to cease their association with the jurors.

On those facts the Supreme Court held that the right to trial by jury had been compromised. “It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that [the deputies] played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the jurors’ confidence in those who were their official guardians during the entire period of the trial.

And Turner’s fate depended upon how much confidence the jury placed in those two witnesses.” (Turner v. Louisiana, supra, 379 U.S. at p. 474 [13 L.Ed.2d at pp. 429-430].) Gonzalez v. Beto, supra, 405 U.S. 1052, was a

summary reversal. The concurring opinion of Justice Stewart, in which Justices Douglas and Marshall joined, reveals that the facts were similar to those in Turner and reversal was predicated on the same reasoning. The key prosecution witness was a county sheriff who also served as courtroom deputy. His testimony on cross-examination was interrupted so that he could retire the jury, and he continued to serve in his role as bailiff through the end of the trial and deliberations. The trial court carefully considered LaCasella’s involvement in courtroom activities and ruled that

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