THE PEOPLE, Plaintiff and Respondent, v. CONRAD JESS ZAPIEN, Defendant and Appellant, 4 Cal. 4th 929

Opinion GEORGE, J. Defendant was convicted, following a jury trial, of first degree murder (Pen. Code, § 187, subd. (a)) with the special circumstances that the killing was committed during the course of a burglary and an attempted robbery (§ 190.2, subd. (a)(17)). Defendant also was convicted of first degree burglary (§ 459) and attempted robbery (§ 664/211). The jury found that defendant personally used a knife (§ 12022, subd. (b)) and a firearm (§ 12022.5, subd. (a)) in the commission of each offense.

The allegations that defendant previously had been convicted of voluntary manslaughter and robbery, and had served prior prison terms for these offenses, were tried to the court and found true. (§§ 667, subd. (a), 667.5, subds. (

a) and (b).) The penalty phase was tried to the jury, which fixed the punishment at death. After denying the motion for modification of the penalty verdict, the trial court entered judgment accordingly. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the judgment. Facts During a period of at least one year preceding the May 19, 1984, murder of Ruby Gonzales, she had an affair with Yeyo Blanco, who was married to defendant’s sister, Inez Blanco. By April 1984, Yeyo Blanco had moved into Ruby Gonzales’s house in Lompoc, in Santa Barbara County.

He told his wife that he and Gonzales wanted to get married and that Gonzales was going to have an operation, at his expense, to reverse a tubal ligation so they could have children together. On several occasions during this period, Inez Blanco had public arguments and physical altercations with Gonzales and threatened to have her killed. On one occasion shortly before the murder, Inez Blanco saw Gonzales wearing an expensive gold bracelet that belonged to Yeyo Blanco. The bracelet bore the name “Yeyo” spelled out in diamonds, some of which had come from jewelry that had belonged to Inez Blanco’s grandmother.

Inez Blanco demanded the bracelet, but Gonzales refused to give it to her. May 18,1984, the day preceding the murder, was the wedding anniversary of Yeyo and Inez Blanco. Inez Blanco, who lived in Lompoc, twice visited her husband at work in Oxnard that day and attempted to hold his hand, but he refused and asked her to leave. Later that day, Inez Blanco was in her automobile, stopped at a stop sign in Oxnard, when defendant called to her. She had not seen him for a long time and invited him to enter the vehicle. Defendant, who had “a drug problem,” asked his sister to loan him money. She declined.

Defendant searched under the automobile’s floor mats and found some coins which Inez Blanco said he could keep. They later parted, and Inez Blanco drove home to Lompoc. Approximately 3 a.m. on May 19, 1984, Inez Blanco was awakened by a telephone call from defendant, who asked for an advance of money from their mother’s estate, of which Inez Blanco was executrix. She refused. Inez Blanco later told a police officer that her brother had seemed desperate for money. Shortly after 5 a.m. that day, Yeyo Blanco left Ruby Gonzales’s house to go to work, leaving the front door unlocked.

Gonzales was awake but remained in bed. Yeyo Blanco drove by his wife’s home and noticed that her Oldsmobile Cutlass automobile was not there. Soon after Yeyo Blanco left the house, Gonzales’s 13-year-old daughter Marci was awakened by the sound of her mother screaming for help. Marci seized a broom and ran into the hallway, where her mother was wrestling with a man whom Marci did not recognize. Marci began hitting the man over the head with the broom handle and then, at the urging of her mother, ran to telephone the police. Her mother was yelling, “Chato, leave me alone.

I will give you the money and the jewelry.” While Marci was using the telephone, she heard a gunshot. She informed the police her mother had been shot, ran back to the hall, and heard two more gunshots. Observing her three younger sisters standing in the hallway, she pushed them into a bedroom, instructing them to remain there. The assailant ran off. Because it was dark, Marci was unable to describe the attacker in detail, but said he was wearing a long-sleeved plaid shirt, a vest, and a baseball cap. Subsequently, a long-sleeved plaid shirt and a vest were found in the alley behind Ruby Gonzales’s house.

The shirt was stained with blood, which was analyzed and found to be consistent with the victim’s blood. An autopsy revealed that Gonzales had been stabbed five times and had been shot three times in the head and once in the shoulder with a .22-caliber firearm. The shots had been fired at close range, and any one of the head wounds would have been fatal and would have rendered the victim immediately unconscious. Shortly after the murder, police investigators spoke with Inez Blanco, who lived a few blocks from the scene of the crime.

She told them that her automobile was missing and that she might have left the keys in the vehicle. When Yeyo Blanco returned to Ruby Gonzales’s house on the day she was murdered, he removed from her bedroom his gold and diamond bracelet and $600 in cash.

Upon being told by Marti that her mother had called the killer “Chato,” Yeyo Blanco said he might know who that was, instructed her not to repeat that information to the police or to anyone else, and stated he “would work everything out.” Sometime during the month preceding her murder, Ruby Gonzales had been at a restaurant in Oxnard with Yeyo Blanco and happened to meet one of Inez Blanco’s brothers, Valentino, who used the nickname Chato.

Ruby Gonzales was with Valentino no more than five minutes on this occasion, but evidence was received establishing that, two years earlier, she had worked for a few weeks with Valentino. Valentino was in jail on the date of the murder, but the prosecution introduced into evidence photographs of Valentino and defendant to establish that the two brothers were similar in appearance.

Approximately 9 a.m. on the day of the murder, upon leaving his home in Oxnard (located approximately 100 miles from Lompoc), Pastor Joe Valdez found defendant lying on the seat of an automobile that was parked in front of Valdez’s home. For some time, Pastor Valdez had attempted to rehabilitate drug addicts by referring them to Christian homes in various locations around the state. Pastor Valdez had known defendant for 20 years, was aware defendant had “a drug problem,” and previously had told him that if he ever felt the need to go to a Christian home, he should see Pastor Valdez.

Defendant appeared tired, and Pastor Valdez “assumed” he was under the influence of drugs. Defendant said the vehicle he was in belonged to his sister. As the men spoke, Pastor Valdez asked defendant whether he was ready to go to a Christian home, and defendant replied he was. Pastor Valdez telephoned a colleague who operated a Christian home in Madera, gave him defendant’s name, and made arrangements for him to meet defendant at the bus station. Pastor Valdez telephoned the Greyhound bus depot in Oxnard to inquire concerning the bus schedule.

Although defendant had no luggage, Valdez did not find that unusual, because in his experience persons often went to Christian homes with nothing “but the clothes on their back.” Pastor Valdez did not recall what clothes defendant was wearing that day but stated that defendant frequently wore either a baseball cap or a wool cap. About the time of the murder, defendant sometimes slept in a truck parked at his brother’s house in Oxnard. He did not inform anyone at that residence of his plans to leave town. When defendant arrived at the Christian home in Madera, he registered under the false name Jess Pantoja.

He appeared to be suffering from drug withdrawal. On May 22, 1984, Inez Blanco’s automobile was found in a parking lot adjacent to the Greyhound bus depot in Oxnard. Defendant’s fingerprints were found on the outside, driver’s side rearview mirror, the inside rearview mirror, and the gearshift lever. The position of the fingerprints found on the gearshift lever indicated defendant was the last person who drove the automobile. As a result of the foregoing circumstances, a warrant was issued for defendant’s arrest on a charge of auto theft.

Defendant remained in Madera for nearly two months and then transferred to another Christian home in Phoenix, Arizona, where he registered under the false name Jess Mejia. He informed the director of the program he was wanted by the police and remained there until the program closed several months later. During his stay in Phoenix, defendant also used the false name Jess Moran. He used Ids roommate’s Social Security card to obtain employment, from which he subsequently was discharged when it was discovered he had falsified his identity.

Defendant told a friend in Phoenix that he had shot someone during a robbery, later adding that defendant was “wanted for murder in California.” The witness believed, however, that defendant was referring to a robbery of a fast-food restaurant. Defendant told another friend that he previously had owned a .22-caliber handgun. This witness stated that defendant consistently wore long-sleeved shirts. In March 1985, police investigators discovered defendant had placed collect telephone calls from Phoenix to his sisters in California.

On March 13, 1985, defendant was arrested on the auto-theft warrant and subsequently was extradited to California. At the time of his arrest, defendant was carrying a knife of the same general type as that used to stab the victim. Approximately two months after the murder of Gonzales, Yeyo Blanco resumed living with Inez Blanco. Additional evidence, whose admission defendant characterizes as error, will be summarized in connection with the discussion of defendant’s arguments. Discussion Guilt Phase Issues 1.

Admission of Multiple Hearsay Defendant contends the trial court erred in admitting into evidence the testimony and tape-recorded statements of Mariella Perez, because they contain multiple hearsay that does not fall within the hearsay exception, set forth in Evidence Code

section 1235, for prior inconsistent statements. Inez Blanco’s 15-year-old daughter, who also is named Inez, testified that, on the morning Ruby Gonzales was murdered, defendant (her uncle) had not come to the house she shared with her mother and sisters. She also denied having told her older sister Juanita that defendant had come to the house on the morning of the murder with blood on his hands and clothing, that he had admitted killing Gonzales, and that he had received from their mother the keys to the Oldsmobile.

Juanita testified she was on a school field trip the day of the murder and returned home the following day. She denied that her sister Inez ever told her that defendant had come to their house on the morning of the murder with blood on his hands and clothing, had admitted having killed Gonzales, and had received from their mother the keys to the Oldsmobile. Juanita also denied having told her close friend Mariella Perez that her sister Inez had made such a statement.

Perez testified that approximately one year after Gonzales was killed, Juanita Blanco visited her and, while they were alone in Perez’s bedroom, told her that Juanita had learned from her sister Inez that defendant had come to their house the morning of the murder with blood on his shirt and had spoken to their mother. Perez did not recall Juanita Blanco stating that defendant had admitted killing the victim, or that their mother had given defendant the keys to her automobile.

District attorney investigator Kenneth Ast then related Perez’s out-of-court statement to him that Juanita Blanco had told Perez that Juanita’s mother had given defendant the keys to the Oldsmobile. The prosecutor played for the jury tape recordings of two interviews of Perez. In the first interview, Perez stated that the elder Inez Blanco had, on numerous occasions, threatened to kill the victim. Perez also recounted the statement of Juanita Blanco that her sister Inez had seen their mother give defendant the keys to the Oldsmobile on the morning of the murder.

Additionally, Perez asserted that a man she did not know had entered her house and threatened her in an effort to persuade her not to disclose information concerning the murder. In the second interview, Perez related a statement made by Juanita Blanco approximately one month prior to the murder, that at least one year earlier her mother had planned to have the victim killed. Shortly after the murder, Juanita Blanco stated to Perez that she suspected her mother had planned the murder, because her mother had not appeared surprised at the theft of the Oldsmobile.

Approximately one week after the murder, Inez Blanco and her three daughters moved out of Lompoc. Sometime long after the murder, Juanita Blanco and her two sisters visited Perez. During that visit, Juanita stated that her sister Inez had seen defendant at the front door of their house on the morning of the murder, “with blood all over him,” and that defendant had inquired, “What am I going to do?” Juanita’s mother gave defendant the keys to her automobile, and defendant left.

When Perez was asked about the man who had entered her house and threatened her, Perez at first declined to discuss the matter, saying it was “not important,” and then denied the incident had occurred. Defendant contends the trial court erred in admitting Perez’s testimony and tape-recorded statements, because the exception to the hearsay rule for prior inconsistent statements (set forth in Evid. Code, § 1235) does not allow admission of multiple hearsay.

Defendant does not point to any authority which so holds, but places great reliance on the absence of any reported decisions upholding the admission of multiple hearsay on this basis. We are unpersuaded. Evidence Code

section 1235 authorizes the admission into evidence of a witness’s prior inconsistent statement. It states, in pertinent part: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing . . . .” Evidence Code

section 1201 authorizes the admission into evidence of multiple hearsay. It states: “A statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule.” Read together, these two statutes permit admission of multiple hearsay where each hearsay level constitutes a prior inconsistent statement. (Cf. People v.

Whitt (1990) 51 Cal.3d 620, 643, fn. 15 [274 Cal.Rptr. 252, 798 P.2d 849].) Such is the situation in the present case. The out-of-court statement of the younger Inez Blanco that defendant had come to her house the morning of the murder with blood on his person, and had obtained the keys to the Oldsmobile from her mother, is inconsistent with her denial at trial that she had made such a statement. The out-of-court statement of Juanita Blanco recounting the above described statement of her sister is inconsistent with her denial at trial that she made such a statement.

Perez’s out-of-court statement that Juanita Blanco had told her that Juanita’s mother had given defendant the keys to the Oldsmobile is inconsistent with Perez’s testimony at trial that she did not recall Juanita Blanco having made this statement. We are unaware of any published decision addressing the precise question whether multiple hearsay is admissible where each hearsay level constitutes a prior inconsistent statement. But none of the decisions addressing similar questions suggests that such evidence is inadmissible.

This court has upheld the admission of multiple hearsay in appropriate circumstances (People v. Pensinger (1991) 52 Cal.3d 1210, 1266 [278 Cal.Rptr. 640, 805 P.2d 899]), and the Court of Appeal has upheld the admission of multiple hearsay where one of the hearsay levels was a prior inconsistent statement. In In re Ricky B. (1978) 82 Cal.App.3d 106, 112-113 [146 Cal.Rptr. 828], a witness testified he had overheard a conversation between the defendant and another person but denied that the discussion concerned a stolen van.

A police officer was permitted to testify that, prior to trial, the witness had stated that during the overheard conversation, the defendant and his companion discussed having stolen a van. The Court of Appeal ruled this multiple hearsay properly was admitted, because the witness’s pretrial statement to the officer was a prior inconsistent statement (Evid. Code, § 1235) and the overheard conversation constituted either an admission or an adoptive admission by the defendant (Evid. Code, §§ 1220, 1221).

Similarly, multiple hearsay consisting of a prior inconsistent statement and an admission of the defendant was held properly received in People v. Earnest (1975) 53 Cal.App.3d 734, 741-743 [126 Cal.Rptr. 107], and People v. Petersen (1972) 23 Cal.App.3d 883, 890-891 [100 Cal.Rptr. 590]. The situation is no different where, as in the present case, each level of hearsay constitutes a prior inconsistent statement. Defendant contends the reason for the rule embodied in Evidence Code

section 1235, allowing admission of prior inconsistent statements, applies only to single-level hearsay. The reason the prior inconsistent statement of a witness may be received is that the declarant is present in court and subject to cross-examination. “The witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common law practice of cross-examination and re-examination was invented to explore.

The reasons for the change of face, whether forgetfulness, carelessness, pity, terror, or greed, may be explored by the two questioners in the presence of the trier of fact, under oath, casting light on which is the true story and which the false.

It is hard to escape the view that evidence of a prior inconsistent statement, when declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony.” (2 McCormick on Evidence (4th ed. 1992) Hearsay Rule, § 251, p. 120, fn. omitted.) Defendant asserts this rationale does not apply where multiple hearsay is involved, because “the jury has no way of testing the reliability of the third party who reportedly saw the event or heard the admission.” Defendant’s argument is not well taken because, in the present case, the “third party who reportedly saw the event or heard the admission,” the younger Inez Blanco, was called as a witness and was subject to cross-examination.

The jury thus was able to assess her credibility. The same is true of Juanita Blanco and Mariella Perez. The reason for the rule allowing admission of prior inconsistent statements was satisfied. Defendant contends the multiple hearsay should not have been received, because each declarant denied having made the alleged prior inconsistent statement. This concern, that an alleged prior inconsistent statement, which the declarant denies having made, may have been fabricated, applies equally to single hearsay and to multiple hearsay.

It is settled that the declarant’s denial of the prior inconsistent statement does not render that statement inadmissible. (People v. Lucky (1988) 45 Cal.3d 259, 289 [247 Cal.Rptr. 1, 753 P.2d 1052]; People v.

Strickland (1974) 11 Cal.3d 946, 954 [114 Cal.Rptr. 632, 523 P.2d 672].) To the contrary, it has been recognized that “the result is more favorable to the cross-examiner than could be produced by eliciting an admission that the statement was made and an explanation of change of position . . . .” (2 McCormick on Evidence, supra, at pp. 123-124.) The circumstances of the present case demonstrate why the jury must be permitted to consider and determine the significance of a witness’s prior inconsistent statement, even where the witness denies having made the statement and proof of the statement consists of multiple hearsay.

According to Perez, the younger Inez Blanco told her sister Juanita that defendant came to the Blanco residence shortly after the murder and was given the keys to the Oldsmobile by the elder Inez Blanco. The importance of this event hardly could have been lost on the Blanco sisters; it not only incriminated their uncle in a brutal murder, but also implicated their mother in the crime. The younger Inez Blanco did not reveal her observations, even to her sister, until long after they were made. Nearly a year after the crime, Juanita shared this family secret with her close friend, Perez, in a private conversation.

If Perez’s account is true, therefore, it would have been surprising had the younger Inez Blanco or her sister, at the murder trial of their uncle, admitted making these statements. To be sure, it is possible that Perez lied and the statements never were made. But the possibility of falsehood adheres in nearly all testimony. The jury had a full opportunity to evaluate Perez’s testimony and judge her credibility, as well as the credibility of Juanita Blanco and her sister.

It would make little sense to hold that Juanita’s and her sister’s denials of their statements rendered inadmissible Perez’s testimony to the contrary. It was for the jury to resolve this conflict and to determine the value of this crucial piece of evidence.

Defendant observes that if multiple hearsay consisting of prior inconsistent statements is admissible, “a single person may by his own testimony introduce statements ‘inconsistent’ with any number of prior declarants, each of whom adamantly deny ever making the statements.” To forestall this occurrence, defendant urges that this court “establish a bright-line rule” that a prior inconsistent statement may be used only “to contradict a single prior declarant.” If such a rule is desirable, it must be established by the Legislature, not by this court. “Our function is not to judge the wisdom of statutes. [Citation.] Nor are we empowered to insert what a legislative body has omitted from its enactments. [Citation.]” (Wells Fargo Bank v.

Superior Court (1991) 53 Cal.3d 1082, 1099 [282 Cal.Rptr. 841, 811 P.2d 1025].) Defendant contends the admission of this multiple hearsay violated his rights under the state and federal Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend; Cal. Const., art. I, § 15.) The receipt in evidence of a prior inconsistent statement does not violate the confrontation clauses of the federal and state Constitutions where the declarant testifies at trial and is subject to cross-examination. (California v. Green (1970) 399 U.S. 149, 164 [26 L.Ed.2d 489, 500-501, 90 S.Ct. 1930]; People v.

Chavez (1980) 26 Cal.3d 334, 361 [161 Cal.Rptr. 762, 605 P.2d 401].) The conclusion is no different where multiple hearsay is involved, each segment of hearsay evidence constitutes a prior inconsistent statement, and each declarant testifies at trial and is subject to cross-examination. In both situations, “[defendant retains the opportunity to question the declarant as to the circumstances surrounding the prior statements and to elicit from the declarant an explanation for the inconsistencies in his prior statement and his on-the-stand testimony.” (People v.

Chavez, supra, 26 Cal.3d at pp. 360-361.) Defendant asserts he was unable to “confront” the younger Inez Blanco regarding her out-of-court statement, because she denied having made that statement. As noted above, the declarant’s denial she made the inconsistent statement does not render it inadmissible. (People v. Lucky, supra, 45 Cal.3d 259, 289.) To the contrary, it has been recognized that the declarant’s denial places the defendant in a stronger position than if the declarant had admitted making the inconsistent statement. (California v.

Green, supra, 399 U.S. 149, 159 [26 L.Ed.2d at pp. 497-498].) In rejecting the argument that prior inconsistent statements should be excluded because the defendant is denied the opportunity to cross-examine the declarant at the time the statement was made, the United State Supreme Court observed: “The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story . . . .” (California v.

Green, supra, 399 U.S. 149, 159 [26 L.Ed.2d at p. 497].) The court explained that the defendant’s ability to attack the prior statement may be enhanced, because the witness “should be more than willing to give the usual suggested explanations for the inaccuracy of his prior statement, such as faulty perception or undue haste in recounting the event.” (Id. at p. 160 [26 L.Ed.2d at p. 498].) The defendant, however, still must contend with the circumstance that the witness, although now willing to testify in the defendant’s favor, admits previously having made an unfavorable statement.

If, as in the present case, the declarant denies having made the inconsistent statement, the defendant has a stronger basis for attacking the earlier statement than would be the case if the declarant had admitted making the inconsistent statement. The declarant’s denial that he or she had made the alleged prior statement does not weaken the declarant’s credibility as would the declarant’s admission of having made a contradictory statement. In arguing that Perez’s out-of-court statements were inadmissible, defendant relies on the following sentence from the decision in California v.

Green, supra, 399 U.S. 149, 158 [26 L.Ed.2d at p. 497]: “If the witness admits the prior statement is his, or if there is other evidence to show the statement is his, the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness.” Defendant points out that the younger Inez Blanco denied having made the statement attributed to her, and that the “other evidence" suggesting the statement was made consists of the testimony of Perez which, defendant contends, was untrustworthy.

We conclude Perez’s testimony constitutes sufficient evidence to support a finding by the jury that the disputed statement was made. Perez’s credibility, although challenged, was for the jury to determine. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].) It is true that in the present case the use of multiple hearsay, to establish that the inconsistent statement was made, increased ‘the danger of faulty reproduction” of the declarant’s prior statement. (California v.

Green, supra, 399 U.S. 149, 158 [26 L.Ed.2d at pp. 498, 497].) But this single factor does not dispositively warrant application of a rule different from that set forth in California v. Green, supra, especially because, as noted above, the declarant’s denial that she made the alleged prior statement actually places the defendant in a stronger position to attack the statement than had she admitted making it. Although the probative value of hearsay evidence decreases with each level of hearsay (People v.

Dehnel (1979) 99 Cal.App.3d 404, 408 [160 Cal.Rptr. 279]), one particular instance of multiple hearsay may be more reliable than another instance of single hearsay. The weight to be accorded Perez’s statements was for the jury to determine. (People v. Barnes, supra, 42 Cal.3d 284, 303-304.) It is preferable that the jury determine the credibility of hearsay evidence based upon the totality of the circumstances rather than that this court establish an arbitrary rule based solely upon the number of levels of hearsay.

No existing rule of evidence bars the admission of multiple-hearsay testimony where each hearsay level constitutes a prior inconsistent statement, and we decline to establish such a rule. Defendant, contending the multiple-hearsay statement should have been excluded because Perez was an unreliable witness, cites the decision in Idaho v.

Wright (1990) 497 U.S. 805, 816 [111 L.Ed.2d 638, 653, 110 S.Ct. 3139] for the proposition that the proponent of hearsay evidence has the burden of establishing that the evidence bears “sufficient indicia of reliability to withstand scrutiny under the [Confrontation] Clause.” But this requirement applies only if the prosecution is unable to produce the declarant and the declarant “is shown to be unavailable.” (Id. at p. 814 [111 L.Ed.2d at p. 652].) Where the declarant is unavailable, the defendant has no opportunity to confront and cross-examine the declarant, and the out-of-court statement must be excluded unless it “bears adequate ‘indicia of reliability’ ” (ibid.) such that “adversarial testing would add little to its reliability.” (Id. at p. 821 [111 L.Ed.2d at p. 656].) The foregoing rule does not apply to the admission of prior inconsistent statements because, when the declarant testifies in court, the defendant may confront and cross-examine the witness.

The admission of prior inconsistent statements does not offend the confrontation clause—not because such statements are so inherently reliable that “adversarial testing” is not needed, but because the declarant is present in court and such “adversarial testing” can occur as the defendant confronts and cross-examines the witness. The present case is controlled, therefore, by the holding in California v.

Green, supra, that “the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” (California v.

Green, supra, 399 U.S. 149, 158 [26 L.Ed.2d at p. 497].) The primary reason for this rule is that “the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial.” (Id. at p. 159 [26 L.Ed.2d at p. 497].) In so holding, the high court distinguished those cases which required the evidence to possess “indicia of reliability,” because such cases addressed “precisely the opposite situation—situations where statements have been admitted in the absence of the declarant and without any chance to cross-examine him at trial.” (Id. at p. 161 [26 L.Ed.2d at p. 499].) In the present case, the prosecution was not required to demonstrate that Perez’s testimony bore certain “indicia of reliability.” The circumstances recounted by defendant that cast doubt upon the reliability of Perez’s testimony, therefore, do not render the multiple-hearsay statement inadmissible, but were factors for the jury to consider in determining the weight of the evidence.

Defendant asserts that the probative value of Perez’s testimony “was clearly outweighed by its prejudicial effect” and that the evidence thus should have been excluded pursuant to Evidence Code

section 352. The record reflects that no objection on this ground was made at trial. In the absence of such an objection, the trial court had no duty to make an express ruling based upon a weighing of relevance and prejudice under Evidence Code

section 352. (People v. Anderson (1990) 52 Cal.3d 453, 477 [276 Cal.Rptr. 356, 801 P.2d 1107].) Nor does defendant explain in what respect Perez’s testimony was unduly prejudicial, stating only that it is reasonably probable a result more favorable to defendant would have been reached in the absence of Perez’s testimony. This is not the sort of prejudice referred to in Evidence Code

section 352. (People v. Hole (1983) 139 Cal.App.3d 431, 436-437 [188 Cal.Rptr. 693].) “The prejudice which exclusion of evidence under Evidence Code

section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638 [250 Cal.Rptr. 659, 758 P.2d 1189]; People v. Yu (1983) 143 Cal.App.3d 358, 377 [191 Cal.Rptr. 859].) “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” (People v. Farmer (1989) 47 Cal.3d 888, 912 [254 Cal.Rptr. 508, 765 P.2d 940].) No such prejudice ensued from the admission of Marietta Perez’s testimony. 2. Admission of the Testimony Previously Given by Marietta Perez at the Evidence Code

Section 402 Hearing At the request of the defense, during the presentation of its case, the trial court admitted into evidence three portions of a reporter’s transcript of the testimony given by Marietta Perez at the December 16, 1986, hearing conducted (pursuant to Evid. Code, § 402) outside the presence of the jury to determine the admissibility of her multiple-hearsay testimony.

Defense counsel was permitted to read to the jury 10 questions and answers in which Perez had stated, contrary to her testimony before the jury and contrary to statements made on other occasions, that neither Juanita Blanco nor her sisters were at home on the morning of the murder, that the younger Inez Blanco had not said defendant’s hands and clothing were bloody when he came to the Blancos’ house, and that no one had come to Perez’s home and warned her not to testify.

The prosecutor then offered into evidence, and the court ruled admissible over defendant’s objection, the transcript of the entire testimony given by Perez at the prior hearing. Evidence Code

section 356 provides, in pertinent part: “Where part of

an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party “In applying Evidence Code

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

Hamilton (1989) 48 Cal.3d 1142, 1174 [259 Cal.Rptr. 701, 774 P.2d 730], italics in original.) Defendant introduced portions of the testimony given by Perez at the hearing held outside the presence of the jury, in order to demonstrate that this testimony differed from her later testimony before the jury and from statements she had made on other occasions.

The People were entitled, therefore, to introduce the remainder of Perez’s testimony for the purpose of placing her allegedly inconsistent statements in their proper context, provided that the remaining testimony had “some bearing upon, or connection with” the inconsistent statements introduced by defendant. (People v.

Hamilton, supra, 48 Cal.3d at p. 1174, italics omitted.) The statements introduced by defendant concerned Perez’s multiple-hearsay testimony relating Juanita Blanco’s repetition of her sister Inez’s statement (regarding defendant’s visit to the Blanco residence on the morning of the murder) and whether Perez later had been warned not to assist in the murder investigation. Perez’s testimony at the hearing comprises less than six full pages of reporter’s transcript.

Perez first described the nature of her relationship with the Blanco family, and then recounted her conversation with Juanita Blanco concerning the statement of Juanita’s sister, Inez. The remainder of Perez’s testimony concerned whether she had been warned not to cooperate with the authorities. The only portion of Perez’s testimony that did not relate directly to those portions introduced by the defense was Perez’s description of her relationship with the Blanco family.

That relationship, in particular with Juanita Blanco, had “some bearing upon, or connection with” her multiple-hearsay testimony concerning Juanita’s relating of the statement made by Juanita’s sister, Inez. Accordingly, the trial court did not err in admitting, pursuant to Evidence Code

section 356, the entire testimony given by Perez at the prior hearing. Defendant states the trial court admitted Perez’s testimony “without even reviewing” the transcript. The record does not support this assertion. During argument concerning the prosecutor’s request to admit Perez’s entire testimony from the prior hearing, the court inquired, “May I see the transcript?” Immediately prior to making its ruling, the court stated: “It appears to me that Miss Perez’s testimony in its pertinent part goes up to 128, line 16.

The rest is colloquy between counsel and argument.” It appears, therefore, that the trial court rather carefully reviewed the transcript before making its ruling. Relying in part upon his claim that the trial court failed to exercise its discretion because it did not review the transcript of Perez’s testimony, defendant contends the court erred in refusing to exclude the prior testimony pursuant to Evidence Code

section 352 because the prejudicial effect of the evidence outweighed its probative value. As explained above, however, the trial court did review the transcript. The record of a ruling based on Evidence Code

section 352 “ ‘must affirmatively show that the trial judge did in fact weigh prejudice against probative value . . . .’ [Citations.]” (People v. Heishman (1988) 45 Cal.3d 147, 170 [246 Cal.Rptr. 673, 753 P.2d 629].) In the present case, after the trial court had made its ruling, defense counsel reiterated that his objection was based on Evidence Code

section 352. The court responded: “Yes. I have thought about whether the jury would be confused by the whole testimony. I don’t believe they would.” The record thus is sufficient to indicate the trial court understood its duty, and exercised its discretion, pursuant to Evidence Code

section 352. (45 Cal.3d at p. 170.) We observe, additionally, that the admission of the entire testimony given by Perez at the Evidence Code

section 402 hearing could not have prejudiced defendant. As he acknowledges, much of this testimony was cumulative to the testimony given by Perez before the jury. Other small portions, such as the statement that Juanita reversed the charges when she telephoned Perez, were irrelevant and nonprejudicial. 3.

The Prosecution’s Intentional Destruction of a Tape Recording Prepared by the Defense After the jury had been selected, but before opening statements were given, Assistant District Attorney Steven Plumer stated at a conference conducted outside the presence of the jury that an audio tape recording belonging to defense counsel had been discovered inadvertently by one of the prosecutors, Deputy District Attorney Gary Van Camp, and his chief investigating officer, Detective Sergeant Harry Heidt, and had been destroyed intentionally by Heidt.

Two days after this disclosure, a hearing commenced outside the presence of the jury, revealing the following: On October 4,1986, after jury selection had begun, Van Camp and Heidt, while traveling in a “county car,” discovered a sealed envelope bearing the name of Assistant Public Defender Bill Davis, the defense attorney in the present case, and a return address of the Santa Barbara Public Defender’s Office. From the shape of the envelope, it appeared to contain an audio cassette tape.

According to Sergeant Heidt, he suggested to Van Camp that Heidt prepare a “found property” report for the envelope and its contents, which would be “standard procedure” under such circumstances. Instead, Van Camp opined that the tape might relate to the present case and asked Heidt to listen to it and “report to him what was on the tape.” Heidt testified that instead of listening to the tape recording, he threw the sealed envelope into a trash dumpster approximately 15 minutes after the envelope was discovered.

Two days later, Heidt spoke to Van Camp, who inquired whether Heidt had anything to report from listening to the tape recording. Heidt told Van Camp he had not listened to it and “expressed [his] feelings about being placed in that position,” explaining at the hearing that Heidt felt it would have been “unethical” for him to have listened to the tape recording. Heidt stated to Van Camp that, as far as Heidt was concerned, “the tape was never found.” Nearly three weeks later, on October 24, 1986, R. O.

Hebert, the chief of the Lompoc Police Department, summoned Sergeant Heidt to determine whether Heidt had knowledge of a heated argument alleged to have occurred between Van Camp and a member of the Lompoc Police Department. Heidt knew nothing of that incident. Chief Hebert then inquired whether there were any problems between Heidt and Van Camp. Heidt responded that he did have some problems and, without further inquiry by Chief Hebert, volunteered the information concerning the discovery and destruction of the tape recording.

Heidt testified his destruction of the envelope had “bothered” him, and he felt it was important to disclose the incident before the evidentiary phase of the trial began “[s]o the court and the defense was aware of what happened.” Chief Hebert informed Assistant District Attorney Plumer who, on October 27, 1986, the day before opening statements were to begin at the guilt phase of the trial, notified defense counsel of the incident.

Van Camp’s recollection of the discovery of the envelope coincided with Sergeant Heidt’s, except that Van Camp denied instructing Heidt to listen to the tape recording, testifying instead that he gave the envelope to Heidt, stating: “I don’t want it. You take it and you decide what to do with it.” Assistant Public Defender Bill Davis represented that he had dictated the . tape recording in question, which revealed his perceptions of the strengths and weaknesses of the case, in preparation for a meeting at which trial strategy was to be discussed with experienced members of his office.

The contents of the tape recording had been transcribed for his use at the meeting. Davis last saw the tape recording after sealing it in an envelope and placing it in a county automobile on September 26, 1986. A sealed copy of the transcription was introduced by defense counsel and was reviewed by the trial court in camera. Prior to any ruling by the court, the District Attorney of Santa Barbara County, Thomas Sneddon, assumed the role of trial prosecutor, replacing Van Camp.

Sneddon later represented to the court that Van Camp had been demoted, resulting in a decrease in salary from $52,000 per year to approximately $27,000 per year. The trial court found that Van Camp, despite his denial, had instructed Sergeant Heidt to listen to the tape recording but further found that Heidt had not done so and instead had disposed of the recording without listening to it.

In light of the foregoing incident, defendant moved for (1) dismissal of the charges, or other appropriate sanctions, (2) recusal of the entire Santa Barbara County District Attorney’s Office, and (3) a continuance to conduct further research and investigation. The trial court denied each of the motions. We shall consider separately whether the trial court erred in each instance, but first we address defendant’s contention that the trial court’s finding—that neither Sergeant Heidt nor Van Camp had listened to the tape recording—was “legally erroneous.” A.

The Trial Court’s Finding That Neither Heidt Nor Van Camp Had Listened to the Tape Recording Defendant urged the trial court to dismiss the case because the prosecution had “invad[ed] the defense camp” by listening to the tape recording. (See Barber v. Municipal Court (1979) 24 Cal.3d 742, 756 [157 Cal.Rptr. 658, 598 P.2d 818].) The trial court declined to dismiss the case, or impose some other sanction, because it found the prosecution had not listened to the tape recording. At oral argument before us, defendant’s counsel conceded that if the prosecution did not listen to the tape, no sanction should be imposed.

Defendant contends, however, that the trial court erred in finding that the prosecution had not listened to the tape recording because, as a sanction for Sergeant Heidt’s destruction of the tape recording, the trial court was required to reject Heidt’s denial that he had listened to the recording, and to find instead that the prosecution had listened to it.

Defendant claims that Heidt’s destruction of the tape cassette itself (as distinguished from the contents of the recording) and destruction of the envelope containing the tape cassette “deprived the defense of the only physical evidence it could use to impeach Heidt and Van Camp regarding whether they unsealed the envelope and listened to the tape.” In support of this claim, an expert in forensic acoustics testified for the defense that “in many instances” he could determine from an examination of a tape recording, and the known machines upon which it had been recorded and played, whether it had been played upon any machine other than those known machines.

Using the known machines, the expert would prepare a “test tape” and compare it to the tape recording at issue. Any differences between the “test tape” and the tape recording at issue would indicate that the latter had been played on a machine different from the known machines. In order for such testing to be productive, it is “critical” that the cassette tape used to make the recording at issue be new; if it is not new, differences between it and the “test tape” might be “attributable to prior use of the tape.” Defense counsel Davis testified the tape he used was new.

An expert in fingerprint identification also testified that it is possible to detect fingerprints on an envelope, on a cassette tape holder, and on the cassette tape itself. Defendant does not assert he was harmed by the destruction of the contents of the tape recording, nor could he. Defense counsel had dictated the contents of the recording, and a transcription had been prepared, thus preserving the contents of the recording despite the destruction of the cassette tape.

It is beyond dispute that it was highly improper for Heidt to discard the envelope, knowing it belonged to defense counsel and might contain material pertinent to the present case. Citing the decisions in People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361] and People v. Zamora (1980) 28 Cal.3d 88 [167 Cal.Rptr. 573, 615 P.2d 1361], defendant contends the trial court was required, as a sanction for Heidt’s destruction of the envelope and the cassette tape, to find that Heidt and Van Camp had listened to the recording.

We conclude, however, that the trial court did not abuse its discretion in determining it would be inappropriate to impose such a sanction. “The applicable law is no longer found in Hitch, supra, 12 Cal.3d 641, but in two subsequent United States Supreme Court decisions. In California v. Trombetta (1984) 467 U.S. 479, 488-489 [81 L.Ed.2d 413, 422, 104 S.Ct. 2528], the high court held: ‘Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense.

To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ (Fn. omitted.) [ft] More recently, in Arizona v.

Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 289, 109 S.Ct. 333], the court held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ ” (People v.

Cooper (1991) 53 Cal.3d 771, 810-811 [281 Cal.Rptr. 90, 809 P.2d 865].) This court has expressly adopted the high court’s holdings in Trombetta and Youngblood. (Ibid.) The present case is different from Trombetta and its progeny in that the envelope and cassette tape were not relevant to defendant’s guilt or innocence, but related solely to whether the prosecution had engaged in misconduct.

But the People do not assert that the rule announced in Trombetta is inapplicable, and we perceive no reason why this rule—formulated in the context of a destruction of exculpatory evidence—should not apply with equal force to the destruction of evidence of official wrongdoing. In the present case, defendant urges that, had the envelope and the cassette tape it contained been preserved, they could have been tested to determine whether the envelope had been opened and the tape recording had been played.

But this “exculpatory value” of the envelope and the cassette tape it contained (as opposed to the contents of the tape recording) was not apparent at the time Sergeant Heidt disposed of them. Although Heidt certainly had reason to suspect that the contents of the tape recording might possess exculpatory value, the destruction of the contents of the tape recording did not lessen defendant’s ability to challenge Heidt’s testimony that the prosecution did not listen to the tape.

Therefore, the destruction of the contents of the tape recording affords no basis for imposition of the sanction that the trial court be required to reject Heidt’s testimony and find that the prosecution listened to the tape recording. Neither does the destruction of the envelope and the cassette tape themselves, apart from the destruction of the contents of the tape recording, afford a basis for imposing the requested sanction.

The record before us supports the trial court’s implied finding that the allegedly exculpatory value of the envelope and the cassette themselves was not apparent at the time Heidt threw them away. (See People v.

Medina (1990) 51 Cal.3d 870, 893 [274 Cal.Rptr. 849, 799 P.2d 1282] [no sanction for destruction of a bottle bearing a fingerprint, because the officer who destroyed the bottle “could not know at the time the prints were taken whether, or to what extent, the Perrier bottle’s print matched defendant’s prints”].) It was reasonable for the trial court to conclude that Heidt had destroyed the envelope and the cassette tape without being aware that they later would assume evidentiary significance on the issue whether Heidt had listened to the recording.

In other words, the record supports the conclusion that, at the time the envelope and the cassette were discovered and destroyed, Sergeant Heidt had no reason to believe that the envelope and the cassette themselves (apart from the contents of the tape recording) would “play a significant role in the suspect’s defense.” (California v.

Trombetta (1984) 467 U.S. 479, 488 [81 L.Ed.2d 413, 422, 104 S.Ct. 2528].) Heidt clearly acted wrongly in disposing of the envelope and its contents, but under the circumstances of the present case, this improper act did not deprive defendant of due process of law or otherwise deny defendant a fair trial. The high court has made it clear that the destruction of evidence by law enforcement officials deprives the defendant of due process of law only if the exculpatory value of the evidence was “apparent ‘before the evidence was destroyed.’ [Citation.]” (Arizona v.

Youngblood (1988) 488 U.S. 51, 56-57, fn. * [102 L.Ed.2d 281, 288, 109 S.Ct. 333], italics in original.) In California v. Trombetta, the high court found no constitutional violation where “[t]he record contained] no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.” (California v.

Trombetta, supra, 467 U.S. 479, 488 [81 L.Ed.2d 413, 422].) We have observed that in the present case, the trial court reasonably found that the exculpatory value of the envelope and the cassette themselves (as so characterized by defendant) was not apparent at the time Heidt disposed of them. The record supports the conclusion that, although it was highly improper for Heidt to destroy the cassette, he did not intend to deprive defendant of exculpatory evidence or to otherwise harm defendant.

Accordingly, the trial court did not abuse its discretion in believing Heidt’s testimony that he had discarded the envelope without opening it and, accordingly, in declining to sanction the prosecution by making an adverse finding that the prosecution had listened to the tape recording. Defendant also contends it was improper for the trial judge, in assessing Heidt’s credibility, to consider the personal opinion of Heidt that the judge had formed prior to his appointment to the bench.

In announcing his finding that Sergeant Heidt did not listen to the tape recording, the trial judge stated: “[F]rom the evidence before me now, being the deputy public defender here for a couple of years and knew [sic] Sergeant Heidt then, and as a deputy district attorney I knew Sergeant Heidt then, and it would not have surprised me that he would have done what he said he did. And that’s not listen to it.” Defendant voiced no objection at trial to this statement by the trial judge.

We agree with the Attorney General that defendant’s failure to raise this issue in the trial court precludes his present claim of error. (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 108 [285 Cal.Rptr. 570]; Gimbel v.

Laramie (1960) 181 Cal.App.2d 77, 85-86 [5 Cal.Rptr. 88].) Had defendant raised the issue in a timely fashion, the trial judge would have had an opportunity to disclose the extent to which his prior contacts with Sergeant Heidt had affected his ruling and, if the trial judge was unable to act impartially and defendant had so requested, the trial judge then could have transferred the determination of Heidt’s credibility to another judge. Defendant therefore may not raise this issue for the first time on appeal.

Having concluded the trial court did not err in finding that the prosecution did not listen to the tape, we turn to defendant’s contention that the trial court should have dismissed the case as a sanction for Heidt’s intentional destruction of the tape recording. B. Denial of Defendant’s Motion to Dismiss Citing a number of grounds, defendant asserts the case must be dismissed. Defendant contends that dismissal is an appropriate sanction because Sergeant Heidt destroyed the contents of the tape recording without knowing whether they were essential to the defense case.

To be sure, this is the primary reason that Heidt’s destruction of the cassette was improper, and we do not condone his conduct. But even though Heidt’s destruction of the tape recording clearly was improper, the imposition of sanctions is warranted only if defendant suffered prejudice as a result of Heidt’s misconduct.

As the United States Supreme Court explained in a related context: “[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. [Fn. and citations omitted.]” (Nix v.

Williams (1984) 467 U.S. 431, 443 [81 L.Ed.2d 377, 387, 104 S.Ct. 2501].) As noted above, the destruction of the contents of the tape recording did not prejudice defendant, because the contents of the tape recording had been preserved by transcription.

It would have been inappropriate, therefore, for the trial court to impose sanctions for the destruction of the contents of the tape recording, particularly the severe sanction of dismissal. “[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation [of the defendant’s right to counsel] may have been deliberate. [Fn.]” (United States v.

Morrison (1981) 449 U.S. 361, 365 [66 L.Ed.2d 564, 569, 101 S.Ct. 665].) Where it appears that the state has engaged in misconduct, the burden falls upon the People to prove, by a preponderance of the evidence, that sanctions are not warranted because the defendant was not prejudiced by the misconduct. (Nix v. Williams, supra, 467 U.S. 431, 444 [81 L.Ed.2d 366, 387-388]; Murphy v. Waterfront Comm’n (1964) 378 U.S. 52, 79, fn. 18 [12 L.Ed.2d 678, 695, 84 S.Ct. 1594].) The People met that burden here.

The evidence established that the prosecution did not listen to the tape recording and that a transcription of the tape recording had been made and was in the possession of defense counsel. The prosecution gained nothing by the destruction of the tape, and defendant lost nothing. Defendant also contends dismissal is an appropriate sanction because the prosecution may have listened to the tape recording. We have concluded, however, that the trial court properly held to the contrary.

In denying defendant’s motion for dismissal, the court invited defendant to reopen the issue in the event the manner in which the prosecution presented its case reflected an awareness of the contents of the tape recording. Defendant did not move to reopen the issue and made no showing of such awareness on the part of the prosecution. In light of the breadth of discovery common in capital cases, a substantial change in the prosecution’s strategy resulting from access to the tape recording most likely would have been apparent to the defense.

Thus the record before us affords no basis for the imposition of any sanction based upon the premise that the prosecution listened to the tape recording. Defendant finally contends the case should have been dismissed because of the cumulative effect of prosecutorial misconduct consisting of Van Camp’s instruction to Sergeant Heidt to listen to the tape recording, Van Camp’s allegedly unethical method of interviewing prosecution witnesses, his copying of a list of defense witnesses from the court file, and his lying under oath in denying that he had instructed Heidt to listen to the tape recording.

Defendant has failed to demonstrate, however, that these instances of alleged misconduct, either singly or cumulatively, prejudiced his case. Accordingly, the trial court did not err in refusing to impose sanctions on the prosecution. (United States v. Morrison, supra, 449 U.S. 361, 365 [66 L.Ed.2d 564, 568-569].) C.

Denial of Defendant’s Motion to Recuse Santa Barbara County District Attorney Sneddon The District Attorney of Santa Barbara County, Thomas Sneddon, personally prosecuted this case from its inception until shortly before the preliminary hearing, when he assigned it to Deputy District Attorney Martinez for the preliminary hearing. Later, Sneddon reassigned the case to Deputy District Attorney Van Camp for trial. As previously noted, when Van Camp’s participation in the destruction of the tape recording came to light, Sneddon removed Van Camp from the case and personally assumed the role of trial prosecutor.

Defendant subsequently moved to have District Attorney Sneddon recused. The trial court denied the motion.

Section 1424 states that a motion to recuse a district attorney “shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.” “[A] ‘conflict,’ within the meaning of

section 1424, exists whenever the circumstances of a case evidence a reasonable possibility that the DA’s office may not exercise its discretionary function in an evenhanded manner.” (People v. Conner (1983) 34 Cal.3d 141, 148 [193 Cal.Rptr. 148, 666 P.2d 5].) “In determining whether a ruling on a motion to recuse was proper, a reviewing court applies the abuse-of-discretion standard. [Citations.]” (People v. Hamilton (1988) 46 Cal.3d 123, 140 [249 Cal.Rptr. 320, 756 P.2d 1348].) Defendant contends District Attorney Sneddon should have been recused because (1) he prematurely terminated his investigation of Van Camp’s misconduct, (2) he filed a Vehicle Code

section 10851 charge against defendant, knowing it was not supported by substantial evidence, and (3) he had a personal interest in obtaining a conviction in order to protect himself and his office from negative publicity. The trial court concluded there was no evidence Van Camp’s misconduct regarding the tape recording would prevent defendant from receiving a fair trial, once Van Camp had been removed from the case. The trial court further found that Inez Blanco’s denial that she gave defendant permission to take her automobile constituted a reasonable basis for the filing of a Vehicle Code

section 10851 charge but that, even if it was improper for that charge to have been filed, any error was cured when the charge was dismissed. Nothing suggested defendant could not receive a fair trial on the remaining charges. Finally, the trial court ruled that the remaining allegations of misconduct, considered singly or cumulatively, did not create a reasonable possibility that defendant could not receive a fair trial. In urging that the trial court erred in denying the recusal motion, defendant points to a letter to Van Camp in which Sneddon condemned Van Camp’s actions.

We fail to perceive how this letter supports defendant’s claim that Sneddon should have been recused. Sneddon’s condemnation of Van Camp’s unethical conduct was entirely appropriate. The letter apparently was an initial step in the imposition of administrative discipline. To the contrary, there would have been cause for concern had Sneddon failed to take such action, or had he otherwise appeared to condone Van Camp’s misconduct.

Defendant also asserts Sneddon terminated his internal investigation into Van Camp’s misconduct when the trial court required the prosecution to disclose to the defense any information uncovered by that inquiry. Assistant District Attorney Steven Plumer testified that when Van Camp’s involvement with the tape recording was disclosed on October 27, 1986, Sneddon instructed Plumer to inform defense counsel and to have district attorney investigator Charles Watkins interview Van Camp, Heidt, and others who might possess relevant information.

On October 28, 1986, Plumer appeared before the trial court and related the information he had received concerning the discovery and destruction of the envelope containing the cassette. The trial court scheduled a hearing for the following day. At the hearing on October 29, 1986, Plumer brought investigator Watkins’s handwritten notes of his interviews and provided copies to the defense at its request. The court advised Sergeant Heidt that the hearing would be continued to the next day in order to allow him an opportunity to consult with an attorney.

Defense counsel then requested that the district attorney’s office be “restrained” from conducting any further investigation of the destruction of the tape recording or, in the alternative, be required to reveal to the defense any information received from that investigation. The trial court ordered that any such information obtained by the district attorney’s office be disclosed to the defense. On that same day, Plumer advised Sneddon of the information he had received from Watkins. Sneddon directed that the investigator prepare a

summary of his investigation. On October 30, 1986, a hearing was held at which Deputy District Attorney Van Camp, Sergeant Heidt, Chief of Police Hebert, investigator Watkins, and others testified. Following this hearing, Sneddon instructed Plumer that no further investigation be conducted by the district attorney’s office, and the matter subsequently was referred to the Attorney General’s office.

On October 31, 1986, Plumer relieved Van Camp of his duties relating to this case and placed him on “administrative suspension.” As noted above, Sneddon represented to the court that Van Camp subsequently was demoted, resulting in a decrease in salary from $52,000 per year to approximately $27,000 per year. Nothing in the record before us suggests the district attorney had an improper motive in discontinuing the investigation that was being conducted by his office.

An evidentiary hearing had been held regarding the destruction of the tape recording, and the matter later was referred to the Attorney General’s office. (Cal. Const., art. V, § 13; Gov. Code, § 12550.) Defendant does not explain what purpose would have been served had the district attorney’s office continued its own investigation. The trial court rejected defendant’s additional claim that Sneddon acted unethically in filing the Vehicle Code

section 10851 charge, knowing it was not supported by substantial evidence, the court instead finding that Inez Blanco’s denial that she had given defendant permission to take her automobile constituted a reasonable basis for the filing of the charge. This finding is supported by substantial evidence. The circumstances that Sneddon filed the Vehicle Code

section 10851 charge at a time when Inez Blanco’s degree of participation in the crimes was unclear, and later moved to dismiss that charge following further investigation, does not constitute unethical conduct or demonstrate that Sneddon had an improper motive in prosecuting the case.

Defendant asserts that Sneddon had a “personal stake” in avoiding negative publicity, and thus was led to attempt to obtain a conviction “at all costs.” This improper motive is demonstrated, according to defendant, by Sneddon’s introduction of the multiple-hearsay statements of Perez, Inez Blanco’s preliminary hearing testimony, and other evidence “which would not have been introduced by other prosecutors.” We have held that the trial court properly admitted the multiple-hearsay statements of Perez as well as Inez Blanco’s preliminary hearing testimony.

We find unpersuasive defendant’s unsupported claim that these and other unspecified items of evidence would not have been introduced by other prosecutors. Defendant also makes reference to the fact that on October 31, 1986, the day following the initial evidentiary hearing concerning the destruction of the tape recording, the district attorney’s office made a plea bargain offer to defendant of a sentence of life imprisonment without possibility of parole in the event he were to enter a plea of guilty. It was stated this offer would be withdrawn if not accepted that day.

This circumstance was not raised as a ground for recusal, and was brought to the trial court’s attention only in another context and more than one month after the court had denied the recusal motion. Defendant is therefore precluded from now arguing on this basis that the trial court erred in denying the recusal motion. We conclude the trial court did not abuse its discretion in denying defendant’s motion to recuse District Attorney Sneddon. D.

Denial of Defendant’s Motion for Continuance On Thursday, December 4, 1986, the day after the trial court denied defendant’s motion to recuse the district attorney (which was also the day scheduled for opening statements), defendant filed a motion for discovery seeking a list of the names and addresses of all witnesses interviewed by former trial prosecutor Van Camp and of all persons present during those interviews.

The motion included a request for “[a] sufficient continuance for the purpose of conducting . . . independent interviews.” That same morning, the prosecution provided the defense with “a list of between 50 and 60” persons Van Camp had interviewed. The defense stated it wished to interview 24 of those persons. Following further discussions and proceedings, the case was continued to Monday, December 8.

When trial resumed on December 8, defendant filed a motion for mistrial on the ground that, because Van Camp’s misconduct was not revealed until after the jury had been sworn, defendant had been denied an opportunity to ask “many critical questions” on voir dire. The motion did not specify the nature of these questions.

In a declaration in support of the motion for mistrial, defense counsel stated that interviews of some of the 24 witnesses (on the list of witnesses interviewed by Van Camp) disclosed “at least four more instances of apparent prosecutorial misconduct.” Defense counsel estimated that “the type of inquiry needed to look into all the areas of potential prosecutorial misconduct will take a minimum of thirty to sixty days.” In arguing in support of a mistrial, the defense stated it “basically” was seeking a continuance.

The trial court denied both the motion for mistrial and the motion for continuance, stating further: “I will entertain a continuing motion for continuance . . . upon a proper showing you need one to investigate certain other witnesses. And we will—I will be sympathetic to your needs. But I don’t have enough before me right now to grant the continuance.” Following a recess, trial resumed with the prosecutor’s and defense counsel’s opening statements.

On appeal, defendant does not challenge the trial court’s denial of the motion for mistrial, but only its denial of the motion for continuance. “The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.

In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction. [Citations.]” (People v. Laursen (1972) 8 Cal.3d 192, 204 [104 Cal.Rptr. 425, 501 P.2d 1145]; see also People v. Ainsworth (1988) 45 Cal.3d 984, 1030 [248 Cal.Rptr. 568, 755 P.2d 1017].) In the present case the trial court did not abuse its discretion.

It expressed sympathy for defendant’s desire to investigate the possibility of additional instances of misconduct by Van Camp, and granted a brief delay from December 4 to December 8, 1986. The court, however, denied defendant’s request for an additional midtrial continuance of “a minimum of thirty to sixty days” because of the burden such a delay would inflict upon the jurors, other witnesses, and the court.

But the court invited defendant to renew his motion for continuance upon a showing relating to specific witnesses, noting: “I will be sympathetic to your needs.” Defendant has not cited any portion of the record establishing that he ever renewed his request. Defendant also has not demonstrated he was prejudiced by the denial of his motion for continuance.

Although defense counsel represented that initial interviews had disclosed additional instances of misconduct, the record does not reflect that such alleged misconduct had any bearing upon evidence to be introduced at trial, or otherwise deprived defendant of a fair trial. We have no basis to conclude, therefore, that the additional investigation defense counsel wished to conduct would have produced relevant evidence. 4. Admission of the Preliminary Hearing Testimony of Inez Blanco A.

Alleged Violation of Defendant’s Rights of Confrontation and Cross-examination Before the elder Inez Blanco was called to testify, the trial court, on its own motion, appointed counsel to advise her of her privilege against self-incrimination. Several days later, the prosecutor called Inez Blanco as a witness at a hearing conducted outside the presence of the jury. After answering a few preliminary questions, she declined to testify further, pursuant to the advice of her counsel, on the ground she might incriminate herself.

A hearing was held to determine whether the prosecution would be permitted to introduce into evidence a transcript of the testimony given by Inez Blanco at the preliminary hearing. (Evid. Code, § 402.) Defendant called as a witness David Stanley, the attorney who represented defendant at the preliminary hearing. Stanley testified that because of delays in obtaining discovery from the prosecution, and the press of other work, he had had insufficient time to prepare for the preliminary hearing.

Stanley recalled that at the time of the preliminary hearing, the charges against defendant included two alleged special circumstances: murder for hire or financial gain, and murder committed during the course of a robbery. (§ 190.2, subds. (a)(1), (a)(17).) Defendant also was charged, in a separate complaint, with unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)).

One of Stanley’s primary goals was to eliminate the special circumstances allegations, if possible, and he believed the allegation of murder for hire or financial gain was “particularly weak.” He understood the prosecution’s theory to be that Inez Blanco had “procured the services” of defendant to commit the murder.

When the prosecution completed its direct examination of Inez Blanco at the preliminary hearing, Stanley concluded “there was no direct evidence whatsoever which would support an inference that there had been a murder for hire, and only very weak circumstantial evidence that would in any way associate [defendant] with the killing . . . .” Determining, therefore, that there was no need to contest Blanco’s credibility, Stanley focused instead (in his cross-examination of the witness) on not inadvertently revealing evidence supportive of the murder-for-hire allegation.

Stanley’s view was that if he “didn’t blunder and bring out some damaging evidence that the prosecution had not brought out, that when [Blanco] departed from the witness stand, the allegation of [murder for] financial gain was going to fall by the wayside.

That was certainly my goal.” Stanley also was aware that, should a penalty phase of the trial ensue, Blanco was as close a family member as defendant had, and it therefore “was very important ... not to alienate her by any kind of rude or roughshod tactics in examining her, but rather to maintain a positive kind of relationship with her in the speculation of maintaining her cooperation At the conclusion of the preliminary hearing, the magistrate dismissed the allegation that the murder was committed for financial gain. Subsequently, the charge of unlawfully taking a vehicle was dismissed on the People’s motion.

Based upon Inez Blanco’s invocation of her privilege against self-incrimination, the trial court found she was unavailable. (Evid. Code, § 240.) Defendant argued that despite Blanco’s unavailability, her preliminary hearing testimony was inadmissible, because that testimony is unreliable and defendant’s motive for cross-examining Blanco at the preliminary hearing differed from his motive for cross-examining her at trial.

The trial court ruled that the transcript of her testimony at the preliminary hearing was admissible except for her testimony that she did not give defendant permission to take her automobile, because in dismissing the Vehicle Code

section 10851 charge the prosecution stated it no longer believed that portion of her testimony was true. Following the Evidence Code

section 402 hearing, the transcript of Blanco’s preliminary hearing testimony was read to the jury. Defendant contends that the admission at trial of this testimony violated Evidence

section 1291, as well as his right of confrontation under the federal and state Constitutions. Evidence Code

section 1291, subdivision (a), provides, in pertinent part: “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [][]... [][]

(2) The 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 that his motive for cross-examining Blanco at the preliminary hearing “differed materially and substantially” from his motives at trial, because (1) defense counsel feared that extensive cross-examination at the earlier hearing might reveal damaging evidence regarding the special circumstance allegation of murder for financial gain which the prosecution had failed to prove and which subsequently was dismissed, and (2) he did not wish to alienate Blanco because she might be a crucial witness during a possible penalty phase.

Frequently, a defendant’s motive for cross-examining a witness during a preliminary hearing will differ from his or her motive for cross-examining that witness at trial. For the preliminary hearing testimony of an unavailable witness to be admissible at trial under Evidence Code

section 1291, these motives need not be identical, only “similar.” (People v. Alcala (1992) 4 Cal.4th 742, 784 [15 Cal.Rptr.2d 432, 842 P.2d 1192].) Admission of the former testimony of an unavailable witness is permitted under Evidence Code

section 1291 and does not offend the confrontation clauses of the federal or state Constitutions—not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial (see Barber v. Page (1968) 390 U.S. 719, 725 [20 L.Ed.2d 255, 260, 88 S.Ct. 1318]), but because tire interests of justice are deemed served by a balancing of the defendant’s right to effective cross-examination against the public’s interest in effective prosecution. (Ohio v. Roberts (1980) 448 U.S. 56, 64 [65 L.Ed.2d 597, 606, 100 S.Ct. 2531]; People v.

Malone, supra, 47 Cal.3d 1, 24.) Defendant’s interest and motive for cross-examining Inez Blanco during the preliminary hearing were sufficiently similar to those existing at trial so as to permit the admission of Blanco’s preliminary hearing testimony. On both occasions, Blanco’s testimony relating her contacts with defendant the day preceding the murder, defendant’s need for money, and the disappearance of Blanco’s automobile near the time of the murder, had the same tendency to establish defendant’s guilt. Defendant’s interest and motive in discrediting this testimony was identical at both proceedings.

Defense counsel’s testimony that he chose, for strategic considerations, not to vigorously cross-examine Blanco does not render her former testimony inadmissible. As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity. (People v. Green, supra, 3 Cal.3d 981, 990; People v. Sul (1981) 122 Cal.App.3d 355, 367 [175 Cal.Rptr. 893].) Defendant relies upon the decision in United States v.

Salerno (1992) 510 U.S.__[120 L.Ed.2d 255, 112 S.Ct. 2503], in which the trial court precluded the defendant from introducing testimony given before the grand jury by two witnesses who refused to testify at trial on the ground they might incriminate themselves. Defendant asserts: “The Salerno opinion is important because it demonstrates that a prosecutor may not have a ‘similar motive’ in examining a witness in front of a Grand Jury” as might exist at trial. Defendant is mistaken, because the high court in Salerno expressed no opinion on the question.

Instead, the court remanded the matter to the Court of Appeals for consideration of this issue. (Id. at p._[120 L.Ed.2d at p. 264].) Defendant additionally asserts the trial court’s reasoning in overruling defendant’s objection to this evidence was “seriously flawed,” because the court stated the evidence would be admissible even if defendant’s interests in cross-examining Blanco at the preliminary hearing and at trial were “entirely different.” We need not, and do not, determine whether this single comment reflects a misunderstanding on the part of

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