THE PEOPLE, Plaintiff and Respondent, v. RODNEY JAMES ALCALA, Defendant and Appellant, 4 Cal. 4th 742

Opinion GEORGE, J. This case reaches us again after a retrial following this court’s reversal of defendant’s convictions. At the initial trial in 1980, a jury found defendant Rodney James Alcala guilty of first degree murder, with a kidnapping-murder special circumstance, and other related offenses. Following the jury’s penalty-phase verdict, defendant was sentenced to death. In reversing defendant’s convictions, this court concluded that the trial court committed prejudicial error at the guilt phase of the trial by admitting evidence of defendant’s prior offenses. (People v.

Alcala (1984) 36 Cal.3d 604, 629-636 [205 Cal.Rptr. 775, 685 P.2d 1126] [hereafter Alcala I].) This court rejected defendant’s contention that retrial was barred by the double jeopardy clause (id,., at p. 614), holding that defendant could be retried on all counts. At the ensuing retrial in 1986, the jury found defendant guilty of one count of first degree murder (Pen. Code, §§ 187, 189), one count of kidnapping (§ 207), one count of false imprisonment (§ 236), and one count of use of a deadly weapon (a knife) (§ 12022, subd. (b)).

The jury also found true the special circumstance of murder in the course of a kidnapping (§ 190.2, subd. (a)(17)(ii)). Defendant admitted an alleged prior felony conviction for lewd and lascivious conduct upon a child under the age of 14-years. (§§ 288, 667.) At the penalty phase, the jury fixed the penalty at death, and thereafter the court imposed a sentence of death. The case is before us again on automatic appeal. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) For the reasons that follow, we conclude that the judgment should be affirmed in its entirety. Facts I. Guilt Phase Evidence A.

The prosecution’s case 1. Overview We begin with a brief

summary of the prosecution’s case, and then set forth a more detailed chronological account of the facts established by the evidence introduced in the prosecution’s case-in-chief. Approximately 3:10 p.m. on June 20, 1979, 12-year-old Robin Samsoe left the Huntington Beach apartment of her friend, Bridget Wilvert, also aged 12, to bicycle to a ballet lesson. Robin did not arrive at her ballet lesson and never again was seen alive by her family or friends.

Five days later, on June 25, 1979, Dana Crappa, a forest service employee, discovered Robin’s mutilated body more than 40 miles away, in a remote mountain ravine above Sierra Madre. Crappa told no one of her discovery, however, and it was not until one week later, July 2, 1979, that another person, her colleague William Poepke, encountered Robin’s remains. Poepke notified the police, who had learned that midafternoon on the day of Robin’s disappearance, she and Bridget had been sitting on the cliffs above the beach in Huntington Beach.

While there, they were approached by a man who stated he was taking photographs for a school contest. He asked whether he could photograph the girls. They agreed and posed for him. Jackelyn Young, an adult neighbor of Bridget, noticed the girls on the cliffs and walked toward them to investigate. Her approach startled the man taking the photographs. He departed quickly, more than once looking over his shoulder. Young later identified the man as defendant. Young escorted Robin and Bridget to Bridget’s apartment building and continued home.

At the apartment, Robin asked Bridget whether she could borrow Bridget’s bicycle in order to reach the dance studio on time. Robin left on the bicycle, but never reached the studio. A police search for Robin commenced that evening. Bridget assisted a police artist in developing a composite drawing of the man who had photographed her and Robin. The drawing appeared in several Southern California newspapers, and was broadcast on television news shows. The police investigation led officers to obtain warrants to arrest defendant and search his residence and his automobile.

On July 24, 1979, the police arrested defendant at his home in Monterey Park and conducted a residential search. During the search of defendant’s home, the police found a Seattle, Washington, storage locker receipt which was dated subsequent to the day of Robin’s disappearance. After obtaining additional warrants, law enforcement officials searched the locker. Among the items found were photographs of another girl, Lorraine Werts, taken at Sunset Beach the day Robin disappeared, and gold ball earrings that Robin’s mother identified as ones she had seen Robin wearing.

Having described the broad outline of the prosecution’s case, we now review, in chronological sequence, the prosecution’s evidence of the events preceding and following Robin’s disappearance and murder. 2. Defendant’s activities at the beach, June 19-20, 1979 Fifteen-year-old Toni Esparza and fourteen-year-old Joanne Murchland spent much of June 19, 1979, on the beach near the Huntington Beach pier. A man they identified at trial as defendant approached the girls in a nearby parking lot, inquiring whether he could take their photographs. He told them he was entered in a “bikini of the month” photography contest.

Both girls were wearing bikinis. The girls agreed, and defendant appeared to take five to ten photographs. Defendant said he had some “joints,” and asked the girls whether they would like to go for a ride to get “loaded” as payment for posing for him. When the girls declined defendant’s offer, he requested their telephone numbers in case he won the contest. The girls refused to give defendant their phone numbers and quickly walked away. Teenagers Lorraine Werts and Patty Elmendorf went rollerskating at Sunset Beach, a few miles north of Huntington Beach, on the following day, June 20.

A man asked them to stop so that he could take some photographs for a class contest. Patty refused. Lorraine, clad in a new bikini, allowed him to photograph her. Patty subsequently identified the man as defendant. Richard Sillett, a City of Huntington Beach survey-party chief, told police officers that in the early to midafternoon of June 20, while he was on the beach below the cliffs, studying the alignment of a bicycle trail, he observed a man walking down the incline toward the ocean.

Sillett, an amateur photographer who owned several cameras, habitually noticed the cameras used by others, and observed that the man carried a 35-millimeter camera with a telephoto lens. The two briefly made eye contact. Sillett later informed the authorities that the composite sketch closely resembled the man with the camera and, both at a photo lineup and at trial, identified defendant as the man he had observed at the beach. Robin Samsoe and Bridget Wilvert arrived at Bridget’s residence approximately 3:10 p.m., after posing for three photographs on the cliffs above the beach.

Robin was anxious to reach the dance studio on time and was excited because she would be advancing to toe shoes that day. Bridget allowed Robin to borrow her bicycle, a yellow Schwinn 10-speed boy’s bike with the handlebars turned up. Robin was expected at Beverly Fleming’s dance studio by 4 p.m. to answer the telephones; Robin’s ballet class at the studio began one hour later. Robin never arrived at the studio. Approximately 5:15 p.m., Fleming telephoned Robin’s home in an unsuccessftil effort to locate her. 3.

Defendant’s activities in the mountains, June 20-21, 1979, and subsequent observations by forestry service personnel In June 1979, Dana Crappa, 20 years of age, was employed as a seasonal firefighter for the United States Forestry Service, stationed at Chantry Flats. While driving back to the Chantry Rats barracks in the late afternoon of June 20, Crappa noticed a blue Datsun F10 automobile parked on the uphill side of a sharp turnout at mile marker 11 on Santa Anita Canyon Road. She subsequently identified this vehicle as one later determined to be registered to defendant.

A few feet in front of the automobile, a medium-built man with dark brown hair was “forcefully steering” or “pushing” a young girl with long blond hair, like Robin’s, toward a dry stream bed. The man looked at Crappa as she slowly drove around the curve. Crappa testified the man resembled defendant, but she was “not 100% positive.” The sight of the man and the girl appeared odd to Crappa, but she proceeded to the barracks without stopping. On June 21, in the early evening, Crappa again was driving back to the barracks.

At Rendezvous Turnout, approximately 1.6 miles from mile marker 11, she swerved her vehicle to avoid being hit by an automobile coming down the mountain. As she swerved, Crappa’s vehicle nearly struck a blue Datsun F10 parked at the side of the road; it was the same vehicle she had observed the previous afternoon. The rear tires and rear portion of the vehicle appeared to have had dirt “kicked up” on them. As she drove by, she glimpsed a dark-haired man near the blue Datsun F10, leaning against a rock wall.

The man wore pants that may have had dirt on them, and a white T-shirt that “appeared to be sort of dirty or have a stain on it.” Crappa believed something was wrong when she saw the same vehicle in such a remote area two weekdays in a row. On June 25, approximately 7 p.m., Crappa parked her vehicle at the mile marker 11 turnout, left the engine running, and walked up a path. The area was permeated by a foul smell. Crappa came upon a tennis shoe, a pair of shorts, and a T-shirt. She also saw a body, bloated and unclothed, missing part of its head, and missing its hands and feet.

The torso was “pretty cut up.” Terrified, Crappa ran back to her vehicle and drove to her parents’ house. Consumed by a sense of guilt, she believed that had she stopped to investigate on June 20 when she observed the man pushing the girl, perhaps the girl would not have been killed. She therefore refrained from telling anyone, including the police, about what she had discovered on June 25.

The first time she revealed her observations of June 25 to anyone was when the information was elicited from her during her testimony at defendant’s first trial, after she testified concerning her observations of June 20 and 21. On June 29, a forestry service crew that included Crappa and Poepke was spraying fire retardant near mile marker 11. About 100 feet from the road, Poepke found what he thought was a deer bone which, in jest, he tossed toward Crappa. Crappa was not amused; she knew the bone was human.

That night, approximately 7 p.m., Crappa returned to the area again, apparently to confirm that the remains Poepke had thrown were the human remains she had seen. They were. Crappa saw a small skeleton, missing one arm. Near the skeleton were six .22-caliber shells, which Crappa placed in her pocket and threw away. Because shotgun shells commonly were found in the area, along with broken clay pigeons, she believed the shells had nothing to do with the body of the little girl. Crappa also saw the tennis shoe, shorts, and T-shirt in a pile together. She did not touch them.

On July 2, the forestry service crew returned to mile marker 11 to continue spraying fire retardant. Poepke and two other fire crew members discovered a human skull and some bones. Law enforcement officers were summoned, and the scattered remains later were identified as Robin’s. 4. Crime scene evidence Robin’s skull had separated from her body. Her lower teeth were fractured in a manner consistent with a traumatic blow to the mouth.

Because her remains were found in an advanced state of decomposition, with several of her bones showing signs of having been gnawed by animals, the cause of her death could not be determined from her skeletal remains. Nor could it be determined whether Robin had been sexually molested. No clothing was found, save for the single tennis shoe that bore her name. Law enforcement officers recovered a Kane Kut kitchen carving knife a few feet from Robin’s remains. The knife bore a small film of human blood, which was insufficient for further analysis.

Officers gathered bloodstained leaves, rocks, and soil from the immediate area; subsequent analysis revealed the blood to be of a type consistent with the type indicated by bone marrow extracted from Robin’s remains. Approximately one mile away, officers found Robin’s beach towel, also stained with blood consistent with the type indicated by Robin’s bone marrow. The stains also were consistent with someone having taken a bloody, straight-edged instrument and wiping it on the towel. The towel was found crumpled up in a ball. 5.

Defendant’s conduct, June 20-July 24, 1979 Defendant spoke by telephone with his girlfriend, Elizabeth Kelleher, on June 20 at 9:41 p.m., and on June 21, at 10:08 p.m. On June 22, defendant visited Kelleher’s home in Long Beach; at the time, his hair was long and curly. On June 23, he straightened his hair with the aid of a product that he purchased at a store. On June 26, he cut his hair. On July 8, he told Kelleher he had decided to leave Southern California for Dallas, Texas, where he planned to set up a photography business.

Kelleher accompanied defendant to the Monterey Park residence he shared with his mother, Anna Maria German, to help him pack for the trip. On July 11, defendant rented a storage locker in Seattle, Washington. When he returned to California three days later, he did not tell anyone where he had been, instead informing Kelleher that he had been to Dallas. On July 23, defendant told her he was leaving for Dallas the following day. Defendant told another acquaintance, Leslie Schneider, he was leaving for Chicago. 6.

Arrest of defendant and search for evidence Police officers arrested defendant at his home a day later, July 24, impounded his automobile, and searched the premises pursuant to a search warrant. During the course of the search, the officers observed a receipt for a storage locker located in Seattle, Washington. One of the officers copied down the information on the receipt but did not seize it. Officers returned the next day to retrieve the receipt. It was gone. Officers seized full sets of Kane Kut knives. Inside defendant’s Datsun F10, the police found a briefcase containing camera equipment and keys.

Officers went to Seattle and obtained a warrant to search the storage locker. The locker was secured with two padlocks, which the officers opened with the keys seized from the briefcase found in defendant’s vehicle. The locker contained boxes of photographic material, including slide photographs of Lorraine Werts taken at the beach. The locker also contained jewelry, including a pair of small, gold ball earrings which Robin’s mother testified matched a set that had belonged to her and that Robin often wore. Robin’s mother said she had looked for the earrings after Robin’s disappearance, but never had found them.

She further testified she had used nail clippers to trim the earrings; a prosecution expert testified that the earrings seized from the locker contained a pattern of striations similar to those produced by the nail clippers that belonged to Robin’s mother. 7. Inmate testimony In 1979, defendant and Frederick Williams were inmates at the Orange County jail. Williams had a long history of providing reliable information to law enforcement personnel.

Early in 1981, after defendant’s initial trial, when Williams was not in custody, he contacted Susanne Shaw, who was employed as an Orange County Deputy District Attorney. He told Shaw he had some information regarding defendant’s case. At the time of defendant’s second trial, Williams was back in custody, but was scheduled for release a few weeks hence. Williams, stating he had neither sought nor received any consideration for his testimony, testified defendant told him in 1979 that defendant regretted having spoken with inmate Ricky Rodriguez, who had given damaging pretrial testimony against defendant.

Later, defendant showed Williams a photograph of his girlfriend and “made a comment about the young lady that was supposedly involved in his case, Robin, and said [the girlfriend] was nothing like Robin when he was with Robin. She was—scratching, yelling and acting like a little wild cat, and had a butt like a grapefruit.” Williams testified defendant told him that he first noticed Robin at the beach area in Huntington Beach. Williams also described a jailhouse incident that took place during the course of defendant’s first trial.

He testified that defendant, in recalling a demonstration for the jury of how defendant might have placed Robin’s bicycle inside his automobile, “was sort of laughing to himself, making fun of the jury as if they were not too competent.” According to Williams, defendant said “they were all acting like a bunch of ducks trying to get the bike in the car and wasn’t doing too good of a job of it.” Williams testified defendant told him that when he placed Robin’s bicycle inside the vehicle, he “just threw it in there like a snap.” B. The defense case 1.

Alibi Defendant presented an alibi defense, attempting to establish that he was at Knott’s Berry Farm in Buena Park during the early to midafternoon of Robin’s disappearance, seeking employment as a photographer for a disco dance contest to be held at the park. Defendant did not testify in his own behalf, but several employees of Knott’s Berry Farm testified that they remembered seeing defendant at the park near the date of Robin’s disappearance, although none could testify specifically to having seen him there on June 20.

Defendant’s sister, Marie Christine De La Cerda, testified she saw defendant at her home in Monterey Park between 4:00 and 4:30 p.m. on June 20. (De La Cerda’s testimony subsequently was contradicted by that of a prosecution rebuttal witness, Sergeant Edward McErlain of the Huntington Beach Police Department.

McErlain testified he had interviewed De La Cerda the day of defendant’s arrest, July 24, when she stated she did not recall seeing defendant on June 20.) On cross-examination, De La Cerda confirmed that on July 24, after checking her calendar during the interview with McErlain, she told him she could not recall seeing defendant on June 20. She also acknowledged visiting her brother in jail on July 25, prior to another interview that she had with McErlain later that day.

De La Cerda testified that during this second interview, she told McErlain she had seen her brother at her house approximately 4:00 p.m. on June 20. An acquaintance of De La Cerda, Richard Mason, testified on rebuttal that he was at her home on June 20 until 4:30 or 5:00 p.m. and never saw defendant that day. Defendant’s other sister, Marie Therese Troiano, testified that defendant had telephoned her from his home in Monterey Park at 5:54 p.m. on June 20.

On cross-examination, after reviewing defendant’s telephone bill for June 1979, she acknowledged that the telephone call in question was the only one she could remember from that month. Defendant’s mother, Anna Maria German, denied making the call. (On rebuttal, McErlain testified that on July 25, 1979, he reviewed the telephone bill with German, who told him she had made the telephone call to Troiano on June 20 at 5:54 p.m.) 2. Changed appearance Defendant sought to prove his changed appearance was unrelated to Robin’s murder.

The defense presented evidence that prior to June 20, Kelleher had encouraged defendant to change his hairstyle. On cross-examination, however, Kelleher admitted that defendant did not act on her wishes until June 23, a date following the local media’s publication of composite sketches of the prime suspect connected with Robin’s disappearance. 3. Physical evidence Defendant also attempted to discredit the physical evidence introduced by the prosecution. Defendant’s mother testified the knife found near Robin’s remains was not hers.

Defendant established that neither Robin’s fingerprints, nor any other physical evidence linked to Robin, was found inside his vehicle. Defendant introduced testimony from friends and employees at the Los Angeles Times, where defendant had been employed, to establish he wore earrings. Although one acquaintance, Jeanette Westenhaver, testified she never had seen defendant wear a gold ball earring or any of the other jewelry recovered from the Seattle storage locker, another acquaintance, Sharon Gonzales, believed defendant had worn such an earring.

An expert witness called by the defense testified there was a strong probability that one of the earrings seized from the Seattle storage locker was trimmed with the nail clippers provided to the defense by defendant’s mother. 4. Inmate testimony Defendant introduced evidence from inmate David Vogel in an attempt to discredit Williams’s testimony.

Vogel claimed he and Williams had discussed the possibility of providing information regarding an inmate named Tommy Thompson, and that Williams wanted Vogel to “put him in,” i.e., give Williams the information so that Williams might bargain to reduce the length of his incarceration in exchange for his testimony. Vogel testified that Williams was “desperate” and “wanted to testify in a murder trial.” The prosecution impeached Vogel’s testimony by playing a tape recording of a police interview of Vogel conducted in September 1979, when Vogel and defendant were inmates in the Orange County jail.

In the tape recording, Vogel said defendant had admitted having parked alongside the beach and having “happened to see [Robin] again on the bike. . . . That’s when he got out of the car and he stopped her and he offered her some money. ...

He said he took a couple of pictures . . . [a]t a park . . . [then] offed [killed] her.” According to Vogel, defendant said: “I don’t think they can convict me of it, David, to tell you the truth.” Vogel said defendant, when asked whether he was guilty, replied: “[H]e was guilty and that uh . . .he don’t think they can convict him of it. . . .No evidence. . . . [H]e asked me . . . what I had thought about the case.

He was really concerned about if he could beat it or not.” After the jury heard the tape recording of the interview, Vogel testified that although he had informed law enforcement officials in 1979 that defendant had told him he had “offed” a girl named Robin after photographing her at the beach, he (Vogel) had made up that story in an unsuccessful effort to strike an informer’s bargain. “I was a selfish, selfish, sleazy dope fiend,” Vogel added, “And I wanted to get back to the street, to shoot dope.” II. Penalty Phase Evidence A.

The prosecution’s case The prosecution introduced evidence of three prior offenses involving minor females. 1. Tali S.—1968 Tali S. was eight years of age on September 25, 1968. She testified that while walking to school in Hollywood that morning, a man in an automobile followed her and inquired whether she wanted a ride. Tali told the man her parents did not want her to talk with strangers. The man replied, “Oh, I know your parents.” He told Tali he would take her to school.

A passerby, Donald Haines, testified he observed the conversation between Tali and the man—whom he identified at the penalty phase as defendant—and moments later saw the girl seated in the back of defendant’s vehicle. His suspicion aroused, Haines followed the vehicle, observed defendant escort Tali into a house, and then summoned the police. Los Angeles Police Officer Christopher Camacho responded to the call. After the officer knocked on the door of the residence, defendant, in the nude, told him, “Wait a minute.

I will be right back.” When defendant failed to return promptly, Comacho kicked in the front door and saw Tali lying on the floor, apparently dead, “in a semi spread eagle position with a bar across her neck. . . . There was blood between her legs . . . blood all over the floor.” As he was searching the house, Camacho heard a muffled cough, returned to where Tali’s body lay, and discovered that the bar had moved from her neck. He summoned an ambulance, then searched the neighborhood for defendant, who eventually was apprehended and convicted of child molestation.

Tali emerged from a coma several weeks after the incident, unable to sit up, and was bedridden for months. 2. Julie J.—1974 Julie J. was 13 years of age on October 16,1974. She testified that while waiting for a bus to take her to school in Huntington Beach that day, a man approached her, introducing himself as “John Ronald.” The two engaged in a conversation, during which the man—whom the police later identified as defendant—learned Julie’s age and persuaded her to allow him to drive her to school.

As they passed Julie’s school, defendant ignored her requests to be dropped off, and continued toward Pacific Coast Highway. There, defendant parked his automobile and escorted the frightened girl toward the cliffs overlooking the ocean. When Julie attempted to walk away, defendant grabbed her. He then invited her to smoke marijuana. Julie never had smoked marijuana but acquiesced out of fear. Defendant “French-kissed” Julie and told her he wanted to be “passionate.” The police arrived and arrested the two for smoking marijuana. 3.

Monique H.—1979 Monique H. was 15 years of age on February 12, 1979, when defendant picked her up as she was hitchhiking in Pasadena. Law enforcement officials from Riverside County testified Monique encountered them the next day in a beaten, hysterical state, and identified defendant as her assailant. Defendant was arrested and, after being advised of his constitutional rights, agreed to speak to the police. In a tape-recorded interview introduced at the penalty phase, defendant described taking Monique to a dirt road in the mountains.

He said he photographed her in the nude, and as she simulated sexual acts with him. At some point, these allegedly consensual activities ceased, and defendant admitted that he thereafter choked Monique until she was unconscious, tied her wrists and ankles with rope, and, after she revived, stuffed her shirt in her mouth to force her to stop screaming, finally raping and sodomizing her. Defendant faced criminal charges arising from his assault of Monique and had been released on bail when he was arrested for the murder of Robin Samsoe. B.

The defense case At the penalty phase, the defense presented evidence relating to four separate points. First, evidence was introduced indicating that defendant was a model prisoner and a skilled typist who could be useful as a prison clerk were he to receive a life sentence. Second, defendant’s mother testified that he was born in 1943, had been a quiet, studious boy who ultimately joined the Army, and always had been kind to her.

Third, the defense sought to establish that defendant had not molested Julie J„ and presented the testimony of Julie’s school counselor, who testified Julie had a truancy problem and was prone to dishonesty. Fourth, the defense presented evidence intended to demonstrate that defendant had not killed Robin. With regard to this final point, defendant testified on his own behalf (not having done so at the guilt phase), stating that on June 20, 1979, he had driven by the area where Robin had been photographed but had not stopped at Huntington Beach.

He stated he went to a photography store, to a friend’s home in Seal Beach and, upon discovering that the friend was not home, to Knott’s Berry Farm amusement park. He admitted photographing Lorraine Werts at Sunset Beach around midday but denied going to the mountains and denied telling inmate Williams anything about the case. He testified he had made the telephone call from his home on June 20 at 5:54 p.m. He further testified he had purchased the gold ball earrings found in the Seattle storage locker, and had used fingernail clippers to alter them.

He denied his Datsun automobile resembled the Datsun described by Crappa. Finally, he said he had rented the Seattle storage locker and had planned to leave Southern California in order to flee the charges stemming from his assault of Monique H., not because he had committed any offense against Robin. Defendant was impeached with evidence regarding his background and prior conduct. On cross-examination, he testified that after attacking Tali S. in 1968, he eluded law enforcement officials, withdrew his life savings, and moved to New York, where he changed his name to Jon Berger.

He worked at a camp in New England with teenage girls. When arrested on a fugitive warrant stemming from his assault on Tali S., he lied to the Federal Bureau of Investigation about his identity in an effort to avoid imprisonment. In March 1972, he was convicted of child molestation and sentenced to state prison. Defendant was released from prison in August 1974. Ten weeks later, he was arrested on the Huntington Beach cliffs with Julie J.

Although defendant claimed Julie furnished the marijuana and suggested they smoke it, he ultimately pleaded guilty to felony possession of marijuana and was returned to state prison for three years. Defendant was released on parole in June 1977. Nine months later, defendant was found in possession of marijuana; a search of his briefcase and residence revealed photographs depicting nude male and female children. Defendant was placed in custody for a few weeks, released, and discharged from parole in June 1978.

Eight months after his discharge from parole, defendant met Monique H., who he learned was 15 years of age. To avoid returning to prison for attacking Monique, defendant was preparing to skip bail. The incident involving Monique led to defendant’s conviction in September 1980 of rape and assault with intent to inflict great bodily injury. On redirect examination, defendant again professed his innocence and requested that the jury impose a sentence of life imprisonment without the possibility of parole. “In prison,” he said, “I’m not a threat to children. . . . I am absolutely harmless.” Discussion I.

Issues Related to the Guilt and Special Circumstance Phase A. Admissibility of testimony of hypnotized witnesses Defendant contends the trial court committed reversible error in permitting Bridget Wilvert and Lorraine Werts to testify at trial. Each witness had been hypnotized during the police investigation following Robin’s disappearance. Defendant argues that our decisions in People v. Shirley (1982) 31 Cal.3d 18 [181 Cal.Rptr. 243, 723 P.2d 1354] and People v. Guerra (1984) 37 Cal.3d 385 [208 Cal.Rptr. 162, 690 P.2d 635] require reversal.

In those decisions, we held that a witness who previously has been hypnotized may not testify concerning matters recalled under hypnosis. (See 31 Cal.3d at pp. 66-67, 70; 37 Cal.3d at p. 390.) As explained below, we conclude that reversal is not warranted. 1. The evidentiary hearing Prior to trial, defendant moved to exclude the testimony of Bridget Wilvert and Lorraine Werts, based on uncontroverted evidence that police investigators had hypnotized the witnesses in 1979. The trial court conducted an evidentiary hearing, at which the parties contested whether our decisions in People v.

Shirley, supra, 31 Cal.3d 18 and People v. Guerra, supra, 37 Cal.3d 385 barred introduction of the proffered testimony. a. Bridget Wilvert On June 21, 1979, the day following Robin’s disappearance, Jim Bogdanoff of the Huntington Beach Police Department interviewed Bridget regarding the events of the preceding day. After the interview, Bridget met with police artist Marilyn Droz for the purpose of creating a composite drawing. No hypnosis of Bridget was attempted on this date. On the basis of Bridget’s recollection, the police artist created a composite drawing, which was photographed by the police.

On the following day, June 22, Droz’s husband and colleague, investigator Arthur Droz, met with Bridget. Investigator Droz had received formal training in hypnosis. He was joined by Marilyn Droz and Sergeant Ron Jenkins, who was supervising the department’s investigation of the case. The purpose of this interview was to hypnotize Bridget with the objective of enhancing the June 21 composite drawing. Die interview was conducted pursuant to specific department guidelines and was audio tape-recorded.

In accordance with Bridget’s recollection under hypnosis, the police artist slightly modified the June 21 drawing to show a light moustache and a “five-o’clock shadow.” b. Lorraine Werts When the police investigators opened the Seattle storage locker in July 1979, they seized hundreds of photographs and slides, five of which showed a girl posing at what appeared to be Sunset Beach, just north of Huntington Beach. At the police investigators’ request, Los Angeles and Orange County newspapers published one of the photos with a plea for assistance.

Lorraine Werts responded, identifying herself as the girl in the photograph. Police investigators interviewed her regarding the circumstances surrounding her having posed. Lorraine described the photographer but was unable to pinpoint the exact date the photos were taken, except to say she thought they were taken between June 19 and June 23, 1979. In an effort to assist Lorraine in recalling the precise date she was photographed, Grover Payne, a Huntington Beach Police Department captain, hypnotized Lorraine according to department guidelines, in a session that was audio tape-recorded.

During this hypnotic session, Lorraine identified the date she was photographed as June 18. c. The court’s ruling After considering the foregoing facts, the trial court denied defendant’s motion to exclude the girls’ testimony. The court found all of the information relating to the June 21 composite drawing to have come from Bridget: “[T]here’s nothing to indicate [that] there is any tainting by law enforcement here to improve her recollection . . . .” Similarly, with respect to Lorraine, the court found the testimony she might offer at trial to be unrelated to the focus of the hypnotic session.

The court concluded: “I’d be stretching Shirley beyond what it was intended, if I would rule out” the proffered testimony. 2. The witnesses’ testimony at trial At trial, Bridget and Lorraine each testified briefly. Bridget recounted the events of June 20, stating that upon leaving Bridget’s residence, she and Robin went to the cliffs overlooking the beach, that a man approached to photograph them for a contest and left immediately after Bridget’s adult neighbor, Jackelyn Young, arrived, and that Bridget and Robin left the cliffs for Bridget’s residence, where Bridget loaned her bicycle to Robin.

Bridget also reviewed the events of June 21, explaining that she spoke with police officers and assisted an artist in preparing a composite drawing of the photographer. Bridget was shown a photograph of a composite drawing, which she identified as the one she helped create on June 21. The prosecution did not ask Bridget to testify regarding the hypnotic session of June 22 or to testify regarding any corresponding enhancements that were made to the composite drawing. Nor did the prosecution ask Bridget to identify the person shown in the drawing.

In her testimony, Lorraine recounted the events of a date in June 1979 when she and her friend, Patty Elmendorf, were rollerskating at Sunset Beach and were stopped by a man who asked to take their photograph. Patty declined and skated away to a bathroom; the man, explaining that he wanted to enter a contest, took some photographs of Lorraine. The man also asked her “personal questions” and invited her to have lunch with him at a nearby Jack-in-the-Box, but she declined. Lorraine identified five photographs showing her at Sunset Beach as the ones she believed were taken by the man.

When the prosecution asked her to provide a general description of him, Lorraine replied she was unable to do so. The prosecution refrained from asking her to pinpoint the date of the incident. The trial court, however, then asked Lorraine whether she recalled the date the photographer had encountered her and Patty, and Lorraine answered, “June 20.” 3. The applicable case law In People v.

Shirley, supra, 31 Cal.3d 18, the prosecution subjected the key complaining witness, a rape victim, to hypnosis on the eve of trial “for the purpose of ‘filling the gaps’ in her story.” (Id., at p. 23.) The trial court denied defendant’s motion to exclude the witness’s testimony, and at trial the victim testified to several matters that she had been unable to recall prior to being hypnotized. (Id., at pp. 29-30.) In Shirley, this court reversed the defendant’s conviction, finding, inter alia, that the use of hypnosis to restore the memory of a potential witness is not generally accepted as reliable by the relevant scientific community. (Id., at pp. 66-67.) We held that the “testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.” (Ibid.) Significantly, we noted in Shirley, supra, that our disapproval of testimony from a previously hypnotized witness was not absolute.

We set forth several limitations on the rule excluding such testimony. (31 Cal.3d at pp. 67-68.) First, we observed, when the prosecution seeks “to question such a witness on a topic wholly unrelated to the events that were the subject of the hypnotic session, his [or her] testimony as to that topic would not be rendered inadmissible . . . .” (Id., at p. 67, original italics.) Second, we recognized a valid purpose in allowing hypnosis by the police “for purely investigative purposes,” subject to our caveat that any person so hypnotized “will not be allowed to testify as a witness to the events that were the subject of the hypnotic session.” (Id., at pp. 67-68.) Third, we noted that the improper admission of testimony from a previously hypnotized witness is not reversible per se; its effect is measured under the prejudicial-error standard set forth in People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]. (People v. Shirley, supra, 31 Cal.3d at p. 68.) We took no position in Shirley, supra, with respect to the admissibility of testimony from witnesses who had been hypnotized prior to the date our decision was filed, March 11, 1982. (31 Cal.3d at p. 67, fn. 53.) In People v.

Guerra, supra, which also involved a hypnotized rape victim, we held the principles set forth in Shirley applied to all cases not yet final on March 11, 1982. (37 Cal.3d at p. 390.) Because defendant’s case was on appeal and therefore not final on March 11, 1982, Shirley is applicable to the present appeal. (See also People v.

Hayes (1989) 49 Cal.3d 1260, 1269 [265 Cal.Rptr. 132, 783 P.2d 719] [reaffirming Shirley's retroactivity].) Guerra, supra, foreshadowed our consideration of the question whether “prehypnotic evidence,” i.e., matters recalled and related by a witness prior to the hypnotic session, is admissible. (37 Cal.3d at pp. 427-429.) In a concurring opinion, Justice Kaus explained why he believed such evidence should be admissible, observing “the probable reliability and potential importance of the evidence justifies its admission.” (Id,., at p. 431 (conc. opn. of Kaus, J.).) Because the issue was unnecessary to the resolution of the Guerra appeal, the majority in Guerra left the question unanswered. (Id., at p. 429.) We revisited the issue of prehypnotic evidence in People v.

Hayes, supra, 49 Cal.3d 1260. The defendant in Hayes was charged with murder, rapé of the murder victim’s spouse, and other offenses occurring in 1979. Marie G., the rape victim, furnished the responding police officer with a description of her assailant and his accomplice.

Within hours, the police hypnotized her to assist a police artist in creating a composite sketch of the assailant, and to develop more information regarding the offenses. (Id., at p. 1262.) Pursuant to decisions in Shirley, supra, 31 Cal.3d 18, and Guerra, supra, 37 Cal.3d 385, this court in Hayes, supra, 49 Cal.3d 1260, held that the admission at trial of Marie’s posihypnotic testimony, notably her positive identification of defendant as her assailant, required reversal of the convictions. (Id., at pp. 1262-1263, 1270; see also People v.

Clark (1992) 3 Cal.4th 41, 149-151 [10 Cal.Rptr.2d 554, 833 P.2d 561]; People v. Miller (1990) 50 Cal.3d 954, 982-986 [269 Cal.Rptr. 492,790 P.2d 1289].) With regard to her prehypnotic testimony, we held it would be admissible at retrial as to events the trial court found were “recalled and related prior to the hypnotic session.” (People v.

Hayes, supra, 49 Cal.3d at pp. 1263, 1270-1273.) In reaching this conclusion, the Hayes opinion agreed with Justice Kaus’s view that cases in which the prehypnotic evidence was obtained prior to this court’s decision in Shirley, evoked “ ‘a special need to ensure that in our zeal to protect the citizenry from the hazards of hypnosis, we do not create a greater injustice by an after-the-fact disqualification of crucial witnesses who have relevant—frequently vital—information that is not tainted by the hypnosis.’ ” (People v. Hayes, supra, 49 Cal.3d at p. 1271, quoting People v.

Guerra, supra, 37 Cal.3d at p. 431 (conc. opn. of Kaus, J.).) Our holding in Hayes governs the admissibility of all prehypnotic evidence predating January 1, 1985. (49 Cal.3d at p. 1273.) With the foregoing principles in mind, we turn to defendant’s contention that the trial court committed reversible error in admitting the testimony of the previously hypnotized witnesses, Bridget Wilvert and Lorraine Werts. 4.

The testimony was admissible under Hayes As noted, defendant contends that under this court’s decisions in Shirley and Guerra, it was error for the trial court to permit Bridget and Lorraine to testify and that the admission of their testimony requires reversal of the judgment. We disagree. Bridget’s testimony regarding the composite sketch she helped create prior to her June 22 hypnotic session was properly admitted under the principles set forth in our decision in People v. Hayes, supra, 49 Cal.3d 1260.

The police investigators preserved her prehypnotic recollection by photographing the June 21 composite drawing of the suspect, which clearly established that Bridget’s testimony pertained to matters that she had both recalled and related to other persons prior to undergoing hypnosis, thus meeting the test of admissibility set forth in Hayes. (49 Cal.3d at pp. 1272-1273; compare People v.

Miller, supra, 50 Cal.3d at pp. 983-984 [Hayes “prehypnotic evidence” rule held inapplicable where all copies of prehypnotic composite drawing were lost prior to trial and witness testified the drawing was inaccurate].) The prosecution confined its questioning concerning the composite sketch to prehypnotic evidence. Similarly, Bridget’s testimony regarding the events of June 20, with the exception of a single response, was admissible under Hayes, supra, 49 Cal.3d 1260. The exception is as follows.

The prosecution asked Bridget at trial whether defendant touched Robin when he had her pose for the photographs taken on the cliffs above Huntington Beach. Bridget replied affirmatively, recalling that defendant had touched Robin’s leg. The defense did not interpose an objection to this testimony.

Several days after Bridget had testified, however, defendant requested that her response be stricken on the ground that, because she had not mentioned prior to her June 22 hypnotic session that defendant had touched Robin, Bridget’s testimony on this particular point was the product of a posthypnotic recollection and was therefore inadmissible. The trial court viewed the request as untimely but nevertheless admonished the jury to disregard Bridget’s testimony that defendant had touched Robin when they were on the cliffs.

In light of the trial court’s admonition, and the relative insignificance of the challenged testimony, any error committed by the trial court in admitting Bridget’s response to this single question was harmless. (Watson, supra, 46 Cal.2d at p. 836.) Lorraine’s testimony, with two exceptions, was confined to matters that she had both recalled and related to other persons prior to her hypnosis, and thus was properly admitted under Hayes, supra, 49 Cal.3d 1260. The exceptions are as follows.

First, Lorraine’s response to the question posed by the trial court—that she identify the date she was photographed—was inadmissible under Shirley, supra, 31 Cal.3d 18, because the inquiry involved a matter identical to the subject of her hypnosis. Nonetheless, under the applicable Watson standard, the court’s error in eliciting this testimony was not prejudicial. (Watson, supra, 46 Cal.2d at p. 836.) At trial, in addition to presenting the testimony of Lorraine, the prosecution called as a witness Patty Elmendorf, the friend of Lorraine’s who was rollerskating with her when the two were approached by defendant.

Patty testified that the date on which the incident occurred was June 20, 1979, the same date related by Lorraine in her testimony. Patty was certain of the date in light of an entry in her diary, and the diary itself was received in evidence. Patty further identified defendant as the photographer who had confronted the two girls on that date. In view of Patty’s testimony, it is not reasonably probable that the trial court’s erroneous elicitation of Lorraine’s reference to June 20 affected the jury’s verdict.

Second, several days after the conclusion of Lorraine’s testimony, defendant requested that the portion of her testimony relating the photographer’s request that she accompany him to lunch and provide him with her address be stricken as posthypnotic recollections. The trial court granted the request, admonishing the jury to disregard this testimony.

In light of the court’s admonition and the marginal relevance of the testimony in question, any error in admitting this evidence was harmless. (Watson, supra, 46 Cal.2d at p. 836.) Our decision in Hayes, supra, also disposes of defendant’s additional contention that the testimony of the hypnotized witnesses should have been excluded because the hypnotic sessions did not conform to the procedures set forth in Evidence Code

section 795. In Hayes, supra, we concluded that Evidence Code

section 795 properly should be interpreted to apply only to hypnotic sessions conducted on or after January 1,1985, the effective date of the statute. (49 Cal.3d at pp. 1273-1274.) We also explained that our holding in Hayes regarding prehypnotic evidence “shall govern the admissibility of all prehypnotic evidence predating January 1, 1985—regardless of when such evidence was or may in the future be offered at trial.” (Id., at p. 1274.) Thus, defendant’s reliance on Evidence Code

section 795 is misplaced. In sum, we find no prejudicial error in the admission of the challenged testimony. (People v. Shirley, supra, 31 Cal.3d at p. 68; see also People v. Caro (1988) 46 Cal.3d 1035, 1048, fn. 4 [251 Cal.Rptr. 757, 761 P.2d 680] [Watson test applicable to erroneous admission of testimony by previously hypnotized witness]; People v. Watson, supra, 46 Cal.2d at p. 836.) B. Admissibility of Dana Crappa transcripts Defendant contends the trial court committed reversible error in declaring Dana Crappa unavailable as a witness pursuant to Evidence Code

section 240, subdivision (a)(3), and in permitting transcripts of her testimony at defendant’s first trial to be read to the jury pursuant to Evidence Code

section 1291, subdivision (a)(2). Defendant also argues the court’s rulings denied him his constitutional right to confront and cross-examine the only witness who tied him to the scene of Robin’s murder. For the reasons set forth below, we find these contentions to be without merit. 1. Crappa’s loss of memory a. Evidence at the Evidence Code

section 402 hearing Shortly before Crappa was scheduled to testify at trial, the prosecutor informed the court, outside the presence of the jury, that Crappa “is not going to testify because she doesn’t have any recollection about the events in this case. . . .” The prosecutor moved that the trial court declare Crappa unavailable as a witness (Evid. Code, § 240, subd. (a)(3)), and permit Crappa’s testimony from defendant’s first trial to be read to the jury pursuant to tiie prior-testimony exception to the hearsay rule. (Evid. Code, § 1291, subd. (a)(2).) Before ruling on the motion, the trial court requested that Crappa testify at a foundational hearing held pursuant to Evidence Code

section 402. A hearing was conducted outside the presence of the jury, during which Crappa testified she had no recollection of her activity at Chantry Flats or, more specifically, of the events to which she testified at defendant’s first trial. The trial court made a preliminary determination that Crappa was “unavailable to testify within the meaning of the [Evidence Code] statutes at this time.” The court determined, however, that the jury should be allowed to evaluate her demeanor and hear why she was unable to testify. Proceedings were resumed in the presence of the jury.

As she had at the foundational hearing, Crappa testified to a complete loss of memory with regard to the events that related to this case. She testified she could not recall appearing in court to testify at defendant’s first trial. She acknowledged having consulted a psychiatrist or psychologist regarding her memory lapse. Thereafter, the trial court excused the jury. The court informed the parties that Crappa “probably has a preexisting mental infirmity so as not to recall her testimony. „ . . And it seems to me that infirmity is such as to permit the introduction of her former testimony.

And I don’t think she’s refusing by her own choice.” The court observed that the prosecution had the burden of proving unavailability and, prior to issuing its final ruling, gave the parties five days to prepare the necessary arguments for a full evidentiary hearing. At the evidentiary hearing, the prosecution presented testimony of Dr. Anthony Staiti, a psychiatrist who had examined Crappa on three occasions in 1985, one year prior to defendant’s second trial.

Staiti testified Crappa had been referred to him by another psychiatrist for a determination whether she would be capable of working as a police dispatcher. He testified Crappa complained of memory lapses that impeded her efficiency. Staiti affirmed that she had described to him “periods of waking up suddenly screaming and shaking, totally panicked without knowing why.” Crappa told him that after awakening in a frightened state, she usually could not return to sleep but would, instead, remain awake, waiting for the time to go to work.

Staiti diagnosed Crappa as suffering from “posttraumatic stress disorder chronic delayed,” one of the symptoms of which is memory impairment arising at least six months following the initial trauma. Based on his consultations with Crappa in 1985, he opined her memory lapse with respect to events in 1979 “had something to do with a murder. . . .” Following the prosecution’s direct examination of Dr. Staiti, defense counsel informed the court that the defense had yet to complete its review of the psychiatric reports that Dr. Staiti had brought to court, which consisted of between 20 and 30 pages.

The defense requested an opportunity to review this material before cross-examining Dr. Staiti. The prosecutor argued that approximately one-half of the material appeared to be comprised of an M.M.P.I. (Minnesota Multiphasic Personality Inventory) examination, which Staiti testified he had not considered. The court recessed to allow the defense to review Dr. Staiti’s reports, after which defense counsel proceeded with cross-examination, without requesting any further continuance in order to prepare.

At the conclusion of the cross-examination, defense counsel reiterated a request (set forth in moving papers opposing a finding that Crappa was unavailable) that the trial court order an independent psychiatric examination of Crappa to assist the court in ascertaining the validity of Crappa’s memory loss. The court denied the request. Defendant called as a witness, at the hearing, Judge Philip E. Schwab, who presided over defendant’s first trial.

Judge Schwab testified that during Grappa’s testimony at the first trial, there were “substantial delays between the question and an answer, sometimes running perhaps close to a minute, perhaps even longer.” After hearing the testimony presented at the hearing, the trial court indicated it was adhering to its preliminary determination that Crappa was unavailable as a witness within the meaning of Evidence Code

section 240, subdivision (a)(3). b. Defendant’s challenge On appeal, defendant’s challenge to the trial court’s ruling admitting testimony from the first trial is based on three distinct arguments. First, defendant contends the trial court’s conclusion that Crappa was unavailable within the meaning of the statute was not supported by substantial evidence. Second, defendant contends his interest and motive in cross-examining Crappa at the first trial were not the same as at the second trial, and therefore, the trial court erred in admitting the prior testimony pursuant to Evidence Code

section 1291, subdivision (a). Third, defendant contends the admission of Crappa’s prior testimony violated his constitutional right to confrontation. We shall address each of defendant’s contentions in turn. 1. Whether Crappa was unavailable within the meaning of Evidence Code

section 240, subdivision (a)

(3) Dana Crappa testified (in essence) that a loss of memory precluded her from offering any relevant testimony at defendant’s second trial. The prosecutor and the trial court questioned Crappa extensively to determine whether she possessed any recollection whatsoever relevant to the case. She claimed she had none. The prosecution also presented evidence that Crap-pa’s memory loss had existed for at least one year and was connected to a stress-related disability. Over defendant’s objection, the trial court admitted Crappa’s prior testimony under Evidence Code

section 1291, subdivision (a), because the court found Crappa “unavailable” to testify within the meaning of Evidence Code

section 240, subdivision (a)(3), which defines witness unavailablity to include being “unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.” On appeal, defendant contends the prosecution failed to meet its burden of proving that Crappa was unavailable. Further, defendant contends Dr. Staiti had insufficient contact with Crappa to render an expert opinion, and therefore the trial court’s ruling was not supported by expert testimony connecting Crappa’s memory loss to a mental illness or infirmity.

Defendant also contends the trial court erred in denying defendant’s request for an independent psychiatric examination of Crappa to assist in determining the veracity of Crappa’s asserted memory loss. We reject these arguments for the following reasons. a. Substantial evidence supports the trial court’s finding of unavailability Defendant challenges, on substantial evidence grounds, the trial court’s finding that Crappa was unavailable. We find this contention to be without merit.

In response to thorough questioning by the prosecution and the trial court, Crappa testified unequivocally that she had lost all memory of relevant events. Although the trial court was not required to credit Crappa’s testimony, the court made clear that it found her credible and believed that she lacked recollection. On this basis, we reject defendant’s argument that Crappa’s own testimony at the Evidence Code

section 402 hearing, attesting to her total inability to recall any relevant information, did not constitute substantial evidence in support of the trial court’s finding of unavailability. Defendant contends the total memory loss to which Crappa testified fails to constitute a “mental infirmity” within the meaning of Evidence Code

section 240, subdivision (a)(3). We cannot agree. The unusual situation presented here, in which a witness who testifies in considerable detail at one trial, but—ostensibly due to the intervening onset of memory loss—claims a complete inability to recall relevant events at retrial, is analogous to that presented in People v. Rojas (1975) 15 Cal.3d 540 [125 Cal.Rptr. 357, 542 P.2d 229, 92 A.L.R.3d 1127], a case in which a witness who testified at one trial refused to testify at retrial based upon an intervening fear of retaliation. In Rojas, supra, 15 Cal.3d 540, we affirmed the trial court’s ruling admitting the witness’s former testimony under Evidence Code

section 1291, subdivision (a), after the trial court found that the witness’s fear rendered him “unavailable” to testify under Evidence Code

section 240, subdivision (a)(3). (15 Cal.3d at p. 552.) In that situation, we held that a witness’s fear of retaliation permitted a trial court to find that the witness suffered from a “mental infirmity,” which we defined as “ ‘a defect of personality or weakness of the will.’ ” (Id., at p. 551, citing Webster’s Third New. Internat. Dict.; see also People v. Francis (1988) 200 Cal.App.3d 579, 587 [245 Cal.Rptr. 923] [witnesses, who refused to testify despite trial court’s extensive efforts to persuade them to testify, found to be unavailable]; People v.

Quaintance (1978) 86 Cal.App.3d 594, 596 [150 Cal.Rptr. 281] [witness who “had seen ‘seven deaths’ while in the state prison . . . feared he would meet the same fate if he allowed a ‘snitch jacket’ to be placed on him by giving testimony”].) We adopted the view, set forth in People v. Gomez (1972) 26 Cal.App.3d 225, 229-230 [103 Cal.Rptr. 80], that the showing required to establish unavailability based on illness or infirmity must be left to the trial court’s discretion. (People v.

Rojas, supra, 15 Cal.3d at pp. 550-551.) Similarly, in the situation presented here, Crappa’s professed inability to remember any relevant information—an inability that postdated defendant’s first trial, and had compelled Crappa to seek a medical diagnosis for purposes unrelated to the present case—does not offend the Rojas definition of “mental infirmity.” The referenced colloquy between the prosecution and Crappa revealed the witness’s unequivocal refusal or inability to provide relevant testimony. (See fn. 14, ante.) Although Crappa’s professed loss of memory was factually distinct from the fear of retaliation experienced by witnesses in Rojas, Francis, and Quaintance, the result was identical: the prosecution was precluded from obtaining requested testimony from a witness present in court, and the court thus was justified in determining that Crappa was unavailable.

Defendant’s reliance on People v. Sul (1981) 122 Cal.App.3d 355 [175 Cal.Rptr. 893] is misplaced.

In Sul, the witness voluntarily declined to testify, leading the trial court to find him in contempt, send him to jail, and declare him to be unavailable. (Id., at pp. 358-359.) The appellate court concluded the trial court should have taken further action to coerce the witness to testify before ruling as to his availability. (Id., at pp. 365-367.) By contrast, the trial court in the present case participated in extensive questioning of Crappa and observed her closely in order to determine whether she possessed any relevant recollection.

The trial court believed her memory loss to be genuine and not of her own choice. In view of the trial court’s finding, the ability of Crappa to testify in the present case—unlike that of the witness in Sul—would not have been influenced by any amount of coercion from the court. Defendant further contends, however, that even if Grappa’s condition constituted a “mental infirmity” within the meaning of the statute, such mental infirmity could be established only by expert medical evidence, and not by the testimony of Crappa, herself. We reject this contention.

In Rojas, supra, we upheld a finding of witness unavailability on the basis of the witness’s “mental infirmity” in the absence of expert medical testimony. (15 Cal.3d at pp. 548-552.) Other decisions have similarly so held. (See, e.g., People v. Stritzinger (1983) 34 Cal.3d 505, 516-517 [194 Cal.Rptr. 431, 668 P.2d 738] [“Reviewing courts have typically and properly required either expert testimony on the witness’s present condition, or the witness’s own express refusal to testify at trial.” (Italics added.)]; compare People v.

Bojorquez (1880) 55 Cal. 463, 463-464 [undersheriff’s testimony that witness was unwell and “not able” to leave his room held insufficient to permit introduction of witness’s deposition]; People v. Rinesmith (1940) 40 Cal.App.2d 786, 790 [105 P.2d 1021] [police officer’s testimony that witness was “too ill to attend the trial” insufficient to permit introduction of witness’s preliminary-examination testimony]; see also Sanchez v.

Bagues & Sons Mortuaries (1969) 271 Cal.App.2d 188, 193 [76 Cal.Rptr. 372] [elderly witness’s deposition statement regarding his physical infirmity could not be used to establish his own unavailability because witness’s condition at time of deposition “was not proof of his physical infirmity at time of trial,” and no medical testimony was presented indicating that the witness was unable to appear in court].) Accordingly, we conclude that Grappa’s own testimony at retrial, believed by the trial court, was sufficient to support the trial court’s finding that she was unavailable to testify.

Thus, we need not reach defendant’s contention that the testimony of Dr. Staiti, who had interviewed Crappa one year prior to defendant’s retrial, was not sufficiently probative with regard to Crappa’s mental condition at the time of the second trial to support the trial court’s finding that Crappa was unavailable. Under the facts of this case, Dr. Staiti’s medical testimony was not required. (See People v. Stritzinger, supra, 34 Cal.3d 505; People v. Rojas, supra, 15 Cal.3d at pp. 550-551; People v. Gomez, supra, 26 Cal.3d at p. 230.) b.

The trial court did not err in refusing to order an independent psychiatric examination of Crappa Defendant contends the trial court erred in rejecting defendant’s request for an independent psychiatric examination of Crappa to ascertain the veracity of her professed amnesia. He suggests that Crappa may have feigned memory loss to avoid reliving painful memories and stressful cross-examination. Although past cases have suggested that “[a]mnesia is very easy to feign and hard to disprove” (People v. McBroom (1968) 264 Cal.App.2d 242, 247 [70 Cal.Rptr. 326]), we conclude that defendant’s argument lacks merit.

The trial court found that an independent psychiatric examination would neither “add [n]or detract” in the court’s evaluation of her claim of lack of recollection, and neither the facts of this case nor the relevant case law suggests that the trial court was required to order such an examination. The trial court’s finding that Crappa was unavailable to testify was based on its own close observation of Crappa’s demeanor and responses.

Because we have held that expert medical evidence was not required under the facts of this case, we conclude the trial court did not abuse its discretion in denying the request for an independent psychiatric examination. In an analogous context, neither the Evidence Code nor relevant case law requires our trial courts, when confronted with a witness who claims to have no recollection of a matter as to which he or she previously testified, to interrupt the proceedings in order to enable experts to testify for each side as to whether the witness’s claimed lack of recollection is genuine. (See Evid.

Code, § 1235; People v. Sam (1969) 71 Cal.2d 194, 208-210 [77 Cal.Rptr. 804,454 P.2d 700] [right of impeachment does not exist where witness lacks recollection].) Similarly, with regard to a witness who appears to be “unavailable” due to a total loss of memory, we see no reason to require that expert testimony be heard on this issue. Furthermore, the trial court’s rejection of defendant’s request for an independent examination of Crappa is consistent with the judicial policy disfavoring attempts to impeach witnesses by means of psychiatric testimony. (See People v.

Cooks (1983) 141 Cal.App.3d 224, 302 [190 Cal.Rptr. 211]; In re Darrell T. (1979) 90 Cal.App.3d 325, 335-336 [153 Cal.Rptr. 261]; People v.

Manson (1976) 61 Cal.App.3d 102, 135-138 [132 Cal.Rptr. 265]; see also § 1112.) California courts have viewed such examinations with disfavor because “ ‘[a] psychiatrist’s testimony on the credibility of a witness may involve many dangers: the psychiatrist’s testimony may not be relevant; the techniques used and theories advanced may not be generally accepted; the psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communication between the psychiatrist and the jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify the issues; the testimony may be distracting, time-consuming and costly.’ ” (People v.

Manson, supra, 61 Cal.App.3d at pp. 137-138, citation omitted.) We therefore find no error in the trial court’s rejection of defendant’s request. c. A continuance was not required We also reject defendant’s argument, raised for the first time on appeal, that the trial court should have granted defense counsel an extended continuance to allow the defense to consult with its expert prior to examining Dr. Staiti. Defendant did not seek a continuance below, so the argument is not properly before us. (See People v.

Clark (1990) 50 Cal.3d 583, 626, fn. 34 [268 Cal.Rptr. 399, 789 P.2d 127].) Moreover, on the merits, the claim is untenable. When defense counsel sought additional time in which to review Dr. Staiti’s notes at the evidentiary hearing, the trial court granted a recess for that specific purpose. The trial court was under no obligation to volunteer, sua sponte, that the defense could have an unrequested continuance. Thus, we discern no error. d. The requirements of Evidence Code

section 240 were satisfied Based on the foregoing, the record supports the trial court’s ruling that Crappa was “unavailable” in that she was “unable ... to testify,” and that this inability was the result of a “then existing . . . mental. . . infirmity.” (Evid. Code, § 240, subd. (a)(3).) 2. Whether defendant’s opportunity to cross-examine Crappa satisfied the requirements of Evidence Code

section 1291, subdivision (a)

(2) Defendant contends that even if the trial court was correct in finding Crappa unavailable within the meaning of Evidence Code

section 240, subdivision (a)(3), the court should have barred introduction of Crappa’s prior testimony because the testimony failed to satisfy the requirements of Evidence Code

section 1291, subdivision (a)(2). The latter statute provides that former testimony from an unavailable declarant is not barred by the hearsay rule if “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” Defendant contends his “interest and motive” in cross-examining Crappa at the second trial were not “similar” to his “interest and motive” at the initial trial.

More specifically, defendant argues that he lacked a “complete” opportunity to cross-examine Crappa at his initial trial. (See Pointer v. Texas (1965) 380 U.S. 400, 406-407 [13 L.Ed.2d 923, 927-928, 85 S.Ct. 1065].) Defendant cites three areas of inquiry—Grappa’s possible hypnosis (see, post, pp. 785-789), her competency, and her conversations with a former colleague—in which he claims his cross-examination of Crappa at the second triad might have differed from his cross-examination at the first trial in light of events that postdated his initial trial.

Thus, defendant contends, the trial court’s finding that Crappa was unavailable denied him the full opportunity to “pierce the veil” of the prosecution’s case. We reject defendant’s argument. Crappa’s prior testimony was given at defendant’s first trial, a proceeding in which he faced identical charges and the identical potential punishment. Grappa’s testimony was important to each trial, and defendant’s interest and motive in cross-examining her were identical at each.

Indeed, at his first trial, defendant subjected Crappa’s testimony to cross-examination which this court characterized as “intense.” (Alcala I, supra, 36 Cal.3d at p. 620.) The defense concentrated on attempting to discredit Crappa and, in particular, challenged her evasive and occasionally inconsistent responses to police questioning during the 1979-1980 pretrial investigation. (Id., at p. 620, fn. 5.) Under these circumstances, defendant clearly “had the right and opportunity to cross-examine the declarant [at the first trial] with an interest and motive similar to that which he [had] at the [second trial]” so as satisfy the requirements of Evidence Code

section 1291, subdivision (a)(2). Defendant has cited no authority to support his suggestion that a defendant’s “interest and motive” in cross-examining a witness at a second trial is not “similar” to his interest and motive at a previous trial, within the meaning of Evidence Code

section 1291, subdivision (a)(2), simply because events occurring after the first trial may have led counsel at the second trial to alter the nature or scope of the cross-examination of the witness in certain particulars. Evidence Code

section 1291, subdivision (a)(2), does not suggest that prior testimony is admissible only if the cross-examination at the second trial would have been identical to that conducted at the first trial. Rather, the statute conditions the admissibility of the prior testimony on the party (against whom the evidence is admitted) having had an “interest and motive” to subject the witness to a thorough cross-examination, similar to the interest and motive the party has at the later hearing. That requirement clearly was satisfied here. (See, e.g., (People v.

Ogeti (1985) 168 Cal.App.3d 611, 615-617 [215 Cal.Rptr. 16] [victim’s preliminary-hearing testimony from prior kidnap-rape proceeding admitted against defendant in his trial for victim’s murder].) 3. Whether the trial court’s admission of Crappa’s former testimony violated defendant’s right of confrontation Defendant contends that the admission of Crappa’s former testimony, even if statutorily authorized, violated his right of confrontation under the United States and California Constitutions. (See U.S. Const., 6th Amend.; Pointer v. Texas, supra, 380 U.S. at pp. 403-405 [13 L.Ed.2d at pp. 925-927]; Cal.

Const., art. I, § 15; People v. Louis, supra, 42 Cal.3d at p. 982; see also

section 686, subd. (3)(a); People v. Stritzinger, supra, 34 Cal.3d at p. 515.) We reject this contention. The constitutional right of confrontation is not absolute. (Barber v. Page (1968) 390 U.S. 719, 722 [20 L.Ed.2d 255, 258-259, 88 S.Ct. 1318]; People v. Stritzinger, supra, 34 Cal.3d 505.) This right is not violated by the admission of hearsay testimony “where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.” (Barber v. Page, supra; see also Mancusi v.

Stubbs (1972) 408 U.S. 204, 213-216 [33 L.Ed.2d 293, 301-304, 92 S.Ct. 2308]; People v. Wharton (1991) 53 Cal.3d 522, 589 [280 Cal.Rptr. 631, 809 P.2d 290]; People v. Stritzinger, supra, 34 Cal.3d 505; People v. Rojas, supra, 15 Cal.3d at pp. 548-549.) California has recognized this traditional exception to the confrontation requirement by enacting Evidence Code

section 1291. (People v. Wharton, supra, 53 Cal.3d 522.) In California v.

Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930], the United States Supreme Court made clear that where a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently “reliable” to satisfy the confrontation requirement. (Id., at pp. 167-168 [26 L.Ed.2d at pp. 502-503].) Under Green, such testimony is admissible even when the witness is not subject to present cross-examination because of an asserted loss of memory or refusal to answer. (Ibid:, see also United States v.

Owens (1988) 484 U.S. 554, 555-561 [98 L.Ed.2d 951, 955-959, 108 S.Ct. 838] [no violation of confrontation clause by admission of a prior, out-of-court identification statement of a witness who is unable, because of loss of memory, to explain the basis for the identification].) The requirements set forth in the foregoing authorities have been met in the present case. First, as indicated earlier, Crappa’s professed memory loss rendered her unavailable as a witness. Second, her prior testimony was given at defendant’s initial trial in which he faced identical charges and the identical potential punishment.

Crappa’s testimony, which was elicited under oath and subjected to extensive cross-examination by the defense, thus bore the requisite indicia of reliability. We therefore conclude that defendant’s constitutional right of confrontation was not abridged when the trial court permitted transcripts of Crappa’s prior testimony to be read to the jury. C. Other evidentiary rulings Defendant contends the trial court committed prejudicial error in excluding or curtailing the testimony of several witnesses.

In defendant’s view, the trial court’s rulings violated Ms constitutional rights to due process of law, to present a defense, and to confront adverse witnesses. We address each of defendant’s contentions in turn. 1. Dr. London Defendant contends the trial court erred in excluding the testimony of Dr. Ray London, a psychologist who was prepared to testify as part of defendant’s case-in-cMef that law enforcement personnel hypnotized Dana Crappa without her knowledge on several occasions prior to and during defendant’s first trial.

Additionally, London was prepared to testify that police investigators used other sophisticated psychological techniques, short of hypnosis, for the purpose of manipulating and contaminating Crappa’s memory. Defendant offered London’s testimony in an effort to persuade the trial court to strike Crappa’s testimony or, in the alternative, for the purpose of impeaching her testimony before the jury.

Specifically, the defense proposed that in the event the trial court declined to strike Crappa’s testimony, the jury should be allowed to hear London’s testimony and to specially find whether or not Crappa had been hypnotized. Under the proposal advanced by defendant, in the event the jury affirmatively found Crappa to have been hypnotized, it would have been required, pursuant to instructions necessitated by this court’s decisions in Shirley and Guerra, to disregard her testimony.

At the foundational hearing held outside the presence of the jury, London testified he had reviewed the transcripts and tape recordings of Crappa’s pretrial interviews with the police, but had not observed Crappa or the purported hypnotic sessions. He opined that Crappa’s interviewers had used clandestine hypnotic techniques which had placed her in “an altered state of consciousness” in which she was vulnerable to investigators’ suggestions, and that the investigators had contaminated her memory.

He further accused law enforcement personnel of lying or being “gravely mistaken” in stating they had not hypnotized Crappa. In response, the prosecution introduced testimony from Huntington Beach Police Investigator Arthur Droz and Orange County Deputy District Attorney R. Richard Parnell, the law enforcement personnel who had questioned Crappa. The witnesses testified they never had hypnotized Crappa, never had attempted to do so, and had not heard from any source that anyone had hypnotized her.

The trial court weighed the prosecution witnesses’ testimony against that of London, concluding that defendant had failed to meet his burden of establishing as a preliminary fact that Crappa had been hypnotized. The court therefore refiised to strike Crappa’s testimony. In addition, the trial court, pursuant to Evidence Code

section 352, refused to admit London’s testimony, finding this evidence highly speculative and likely to confuse the jury. On appeal, defendant does not contend the evidence is insufficient to support the trial court’s finding that Crappa had not been hypnotized. Instead, defendant contends that, despite the trial court’s finding with regard to this preliminary fact, the court erred in precluding defendant from presenting London’s testimony to the jury.

Defendant contends that this evidence was admissible on either of two theories: (1) that he was entitled to have the jury make its own determination whether Crappa had been hypnotized; and (2) that, in any event, London’s testimony should have been admitted to impeach Crappa’s testimony. a. The trial court properly excluded London’s testimony related to the alleged hypnosis of Crappa Defendant contends the jury was entitled to decide whether Crappa had been hypnotized.

If such hypnosis had been conducted in order to refresh Crappa’s memory, our decisions in Shirley, Guerra, and Hayes, discussed above, would have compelled the trial court to exclude the portion of her testimony that had not previously been recalled and recounted to other persons prior to hypnosis. (See ante, pp. 770-773.) We reject defendant’s contention that the jury was entitled to make its own determination whether Crappa had been hypnotized and thus to decide whether Crappa’s testimony should be excluded.

The trial court correctly viewed London’s testimony as raising a question of law—the admissibility of evidence pertaining to Crappa’s competence, an issue which fell within the exclusive province of the court—rather than a question of fact for the jury’s determination. (See Evid. Code, § 310, subd. (a); People v. Lipinski (1976) 65 Cal.App.3d 566, 575 [135 Cal.Rptr. 451].) When the existence of a preliminary fact is disputed, it is for the court, not the jury, to determine the existence or nonexistence of the preliminary fact. (Evid. Code, §§ 402, subd. (a), 405, subd. (a); see also People v.

Manson, supra, 61 Cal.App.3d 102, 136 [trial court vested with the responsibility of determining competence].) We find no error in the trial court’s ruling. b. The trial court was not obligated to admit London’s testimony for impeachment purposes Having decided the preliminary fact that Crappa had not been hypnotized, the trial court was not required to grant defendant’s request that this issue be submitted for redetermination by the jury. (Evid.

Code, §§ 403, subd. (a), 350.) There remains, however, the question whether the trial court properly excluded that portion of London’s proffered testimony which addressed the allegedly suggestive nature of the interrogation methods employed by the police. At defendant’s first trial, the defense sought to establish that police investigators had “confabulated” Crappa’s testimony—that is, supplanted Crappa’s actual memory with false and imaginary information. (Alcala I, supra, 36 Cal.3d at pp. 620-621; People v.

Shirley, supra, 31 Cal.3d at pp. 31, 63-64.) At that trial, the parties’ experts “gave conflicting views on whether the tapes [of police interviews with Crappa] suggested that Crappa had been ‘brainwashed’ or otherwise led, while in a suggestible state, to false memories.” (Alcala I, supra, 36 Cal.3d at pp. 620-621.) Defendant contends that at the retrial, the trial court should have allowed him to present similar expert testimony regarding improper police interrogation methods in an attempt to impeach the testimony of Crappa and the police investigators. The testimony w

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