THE PEOPLE, Plaintiff and Respondent, v. CLARENCE RAY ALLEN, Defendant and Appellant, 42 Cal. 3d 1222

Opinion GRODIN, J. This is an automatic appeal from a judgment imposing death under the 1978 death penalty legislation. (Pen. Code, §§ 190-190.5.) We affirm the verdict of guilt, the finding of special circumstances, and the judgment of death. I. Facts and Procedure The sordid events leading to the charges that underlie this appeal go back to 1974 and include a large cast of characters: Numerous victims and third party witnesses, various prison witnesses, and at least 10 members of defendant’s “crime family.” For reasons that will appear below, it is necessary to outline the sequence of events in detail.

In June 1974, defendant, then 44 years old, decided to burglarize Fran’s Market in Fresno. He had known the owners of the market, Ray and Frances Schletewitz, for over a decade. He enlisted the assistance of his son Roger, Carl Mayfield, and Charles Jones; the latter two were ostensibly employees in defendant’s security guard business and worked for him and his son in various criminal pursuits. Roger Allen invited the Schletewitz’s 19-year-old son, Bryon, to an evening swimming party at defendant’s house. While he was swimming, the Fran’s Market keys were taken from his pants pocket.

Later that night, while Bryon was on a date arranged by defendant with 17-year-old Mary Sue Kitts, defendant, Mayfield and Jones used Bryon’s keys to burglarize his parents’ market. They removed a safe and took it to the house of Jones’ wife, Charlotte, where they opened it and divided the booty—$500 in cash and over $10,000 in money orders. Defendant, with help from his son Roger, Mary Sue Kitts, defendant’s girlfriend Shirley Doeckel, and two additional persons—Barbara Carrasco and her stepson, Eugene Furrow—cashed the stolen money orders at southern California shopping centers by using false identifications.

Thereafter Mary Sue Kitts contacted Bryon Schletewitz and tearfully confessed defendant had burglarized Fran’s Market and that she had been helping to cash the stolen money orders with a fake identification and a wig provided by defendant. Bryon went to Roger Allen’s house to confront him with this story. Roger admitted the Allen family had burglarized the store, and Bryon confirmed to Roger that Mary Sue Kitts had confessed to him.

When Roger Allen told his father, defendant, of Bryon’s accusation based on Mary Sue Kitts’ confession, defendant responded that they (Bryon and Mary Sue Kitts) would have to be “dealt with.” Defendant subsequently told Ray and Frances Schletewitz he had not burglarized their store and that he loved Bryon like his own son. He threatened the Schletewitzes, however, by hinting to them that someone was planning to burn down their house. He also intimidated them by having his son Roger pay Eugene Furrow $50 to fire several gunshots at their home one midnight.

Around this same time defendant called a meeting at his house and told Charles Jones, Carl Mayfield, and Eugene Furrow that Mary Sue Kitts had been talking too much and should be killed. Defendant called for a vote on the issue of Mary Sue’s execution; it was unanimous that she should be killed.

One reason for the unanimous vote was that those present feared defendant if they did not go along with his plans: He had previously told criminals working with him that he would kill snitches and that he had friends and connections to do the job for him even if he was locked up; he had stated that the “secret witness program” was useless because a good lawyer could always discover an informant’s name and address; finally, he had numerous times referred to himself as a Mafia hitman. He kept a newspaper

article about the murder of a man and woman in Nevada, and claimed he had blown them in half with a shotgun. After the vote, defendant developed a plan to poison Mary Sue Kitts by tricking her into taking cyanide capsules at a party to be held at Shirley Doeckel’s apartment in Fresno. He sent Carl Mayfield and Eugene Furrow to a winery (one of his security guard clients) to pick up the cyanide for the job. Defendant also put some stepping stones from his house in the back of Charles Jones’ truck, to be used to weigh down Mary Sue Kitts’ body, which was to be dumped into a canal after the murder.

When discussing the plan to murder Mary Sue Kitts, defendant overruled Charles Jones’ suggestion that she be sent somewhere until “things died down,” He also dismissed Shirley Doeckel’s objection to a murder being committed in her apartment. Shortly before the party started at Shirley Doeckel’s apartment, defendant also told Eugene Furrow that it was just as easy to get rid of two persons as one if he (Furrow) did not take Mary Sue’s life.

Defendant left Shirley Doeckel’s apartment shortly before Mary Sue Kitts arrived, having first arranged for his operatives to call him from a nearby phone booth to report on the progress of the execution plan. When Mary Sue Kitts arrived she refused to take the “pills” without wine, and Mayfield and Jones so informed defendant by phone; defendant told Furrow to kill Mary Sue one way or the other because he just wanted her dead. The partygoers later brought wine, beer and “reds” to the apartment but Mary Sue still did not take the cyanide.

Defendant subsequently met Furrow outside the apartment and stressed that “he didn’t care how it was done but do it.” Defendant told him he had people surrounding the apartment and that he (Furrow) would be killed if he tried to leave. Thereafter, when Furrow and Mary Sue Kitts were left alone in the apartment, he began to strangle her only to be interrupted by a call from defendant asking if he had killed her yet. Furrow answered, “no”; defendant ordered, “do it” and hung up. Furrow then strangled Mary Sue to death. Furrow called defendant and told him to come pick up the body.

Charles Jones, who was with the defendant when he received the call, then announced he wanted nothing to do with the murder. Defendant told him it was already done and that he was equally involved with the others. Defendant, Shirley Doeckel and Jones then went to pick up the body, which they wrapped and put in defendant’s Cadillac trunk. He again warned Jones that they were all equally involved. Defendant and Shirley Doeckel, in the Cadillac, led Jones and Furrow, in Jones’s car, to defendant’s house, where they transferred the body to Jones’s car and then drove, defendant in the lead, to the mountains.

They stopped after passing over a canal. Furrow and Jones tied the stones with wire to the body pursuant to defendant’s instructions and, while defendant watched for traffic, threw the body into the canal. Defendant variously threatened and bragged to all of his cohorts after the murder. When Carl Mayfield asked defendant how “everything went” a few days later, defendant said, “everything went okay,” meaning that Mary Sue Kitts had been killed.

When Mayfield later asked how Furrow was doing, defendant said he was no longer in existence, explaining it is easy to go to Mexico, get someone killed, and have the body disposed of for only $50. About six months after the murder, when Mayfield asked defendant if he was worried about others talking, defendant said he was not afraid, that “things would be taken care of” if that happened, that he would have snitches killed, and that he would take care of “secret witness” informers even if he was locked up.

He told Charles Jones and others that “talking was a spreading disease and that the only way to kill it was to kill the person talking.” When Jones and others gathered at defendant’s house, defendant stated that “none of [these] people talked,” that “they first took what was coming,” and that, if they did not, “he would get them from inside or outside prison.” When Jones’s home was burglarized some time after the murder and Jones told defendant about the burglary, defendant told Jones the burglary showed he could be easily reached.

He later gave Jones a key that Jones discovered fit his residence, and told Jones in front of Jones’s five-year-old son he knew Jones “would like his kids to grow up without harm.” Defendant made several statements to Shirley Doeckel after Mary Sue’s murder, telling her, among other things, that Furrow was no longer around and repeating his claim that he had killed a woman in Las Vegas.

He also spoke often with Barbara Carrasco, telling her he had “offed Mary Sue Kitts because she was opening her mouth about the money orders,” that he involved Furrow in the murder because “he wanted to get him in deep so he couldn’t talk about the armed robberies and other things that he knew,” and that “he would have put Furrow in the same hole if Furrow didn’t go along with the murder.” Speaking about Mary Sue Kitts herself, defendant told Barbara Carrasco that they “had to ride her up, wet her down and [feed] her to the fishes.” Despite his boasts, defendant had not killed Furrow.

In fact, he thereafter used him—along with Charles Jones—to rob an elderly couple at their jewelry store in August 1974. Unhappy with Furrow’s performance, however, defendant told him he would have shot him a long time ago if not for Barbara Carrasco (Furrow’s adoptive mother). In early 1977 defendant brought some new employees, Allen Robinson and Benjamin Meyer, into his crime family.

He told Meyer he previously “had a broad helping them who got mouthy so they had to waste her” and that “she sleeps with the fishes.” He warned Meyer, “If you bring anybody in my house that snitches on me or my family, I’ll waste them. There’s no rock, bush, nothing, he could hide behind . . . .” When Meyer asked what would happen if defendant was arrested and could not make bail, defendant replied, “you’ve heard of the long arm of the law before? Well don’t underestimate the long arm of this Indian.

I will reach out and waste you.” Some time later, defendant told Meyer about Ray Schletewitz, stating that he kept $50,000 to $75,000 in a second safe in Fran’s Market. He mentioned he had robbed Fran’s Market by taking the first safe and that Ray Schletewitz was mad at him for the robbery, but that “the stupid son-of-a-bitch (Ray Schletewitz) don’t have no proof so he shouldn’t be upset.” After holding meetings with his new men and his son, Roger, defendant drove them to “case” their first robbery project, a K-Mart store in Tulare.

After the robbery, he phoned Meyer to congratulate him on a fine job and to chastise Allen Robinson for making mistakes. He told Meyer, “we are not going to have anything else to do with [Robinson] anymore, and we just might waste him,” and that he would “be back to [him] for other robberies.” Defendant’s son Roger later contacted Larry Green to replace Robinson as the “inside man” for a number of robberies planned by defendant. They committed an armed robbery in March 1977 that proved to be the beginning of the end.

At the K-Mart store in Visalia, Larry Green shot a bystander and the police arrested him along with Meyer and defendant. Defendant was tried and convicted in 1977 of robbery, attempted robbery, and assault with a deadly weapon for his

part in this crime. His arrest also led to his second 1977 trial, this one for the Fran’s Market burglary, conspiracy, and the murder of Mary Sue Kitts—a trial at which numerous witnesses, including Bryon Schletewitz, Carl Mayfield, Charles Jones, Eugene Furrow, Shirley Doeckel, Barbara Carrasco and Benjamin Meyer testified for the prosecution. Defendant was convicted of burglary, conspiracy, and the first degree murder of Mary Sue Kitts, and was sentenced to prison. From Folsom prison defendant called his second son, Kenneth Allen, asking for several copies of a magazine

article about Mary Sue Kitts’ murder. Defendant explained he wanted them to send to other prisons to solicit help to retaliate against those who had testified against him. He repeated this request in a letter to Kenneth. Defendant soon met Billy Ray Hamilton, a fellow inmate and convicted robber who was housed nearby and who worked with defendant in the prison’s kitchen for two months in mid-1980. Hamilton, who was nicknamed “Country,” became defendant’s “dog,” running errands and taking care of various problems in return for cash.

Defendant, who had access to inmate photographs, would give Hamilton photos of inmates and tell Hamilton to locate them for him as one of Hamilton’s chores. Another inmate, Gary Brady, would assist Hamilton occasionally in running errands for defendant. Brady was scheduled to be paroled July 28, 1980; Hamilton was scheduled for parole one month later.

After Hamilton and Brady had been helping him for some time, defendant said he had an appeal coming up and wanted certain people taken “out of the box, killed,” because “they had been onto his appeal,” and “messed him around on a beef.” Defendant mentioned the names “Bryant,” (Bryon), Charles Jones and “Sharlene” (Charlotte) as witnesses to be killed, and offered Hamilton $25,000 for the job.

Defendant confided to another Folsom inmate, Joseph Rainier, that he had been convicted of first degree murder on the basis of the testimony of “the guy who did the actual killing,” and that he would like to see this individual as well as four other witnesses who testified against him killed. Rainier saw defendant and Hamilton talking together in the prison yard bleachers and on the track every day for the four to six weeks before Hamilton’s release on parole in late August 1980.

Hamilton and defendant usually huddled close together when they were talking—both men would straighten up, separate and stop talking whenever Rainier approached. After Rainier repeatedly asked defendant what was going on, defendant stated “he’s [Hamilton] going to take care of some rats [i.e., informants] for me.” He later told Rainier, in front of Hamilton, that Hamilton was going to “get paid for the job” and that “Kenny was going to take care of transportation” for Hamilton after Hamilton’s release.

Defendant said that he could probably “win his appeal” if the witnesses were killed and offered to kill witnesses who had testified against Rainier as well. Defendant asked his eldest son, Kenneth, and Kenneth’s wife, Kathy, to visit him, and they did so with their baby on August 15. He told Kenneth that both Ray and Bryon Schletewitz were going to be murdered and that the other witnesses against him would also be eliminated so that he would prevail on retrial if he won his appeal. He added that Shirley Doeckel had agreed to change her testimony were he granted a new trial.

Defendant explained that Hamilton—whom he referred to as “Country”— would do the killing (and simultaneously commit a robbery so he could have some money to tide himself over) and that he expected Kenneth to supply “Country” with guns and transportation. He stated that “Country” was a professional who would “do what you told him to do,” and gave Hamilton’s mug shot to Kenneth, telling him to burn it after memorizing Hamilton’s face.

Kenneth agreed to find guns for Hamilton with help from his wife Kathy, who would evidently trade drugs for the guns, and he smuggled Hamilton’s picture out of prison in his baby’s diapers. Thereafter, he received a series of letters from his father detailing the evolving plan.

In the first letter, written the day after the visit, defendant told Kenneth, “I rapped to my dog when I jammed back in here .... [He] is looking forward to meeting you all and it’s okay with him to smoke to your pad.” Defendant asked Kenneth to “send me the name of that dude that got off with such a light sentence, okay? . . . and that lawyer, that sounds like just might be the play I have been looking for.... I know with the right lawyer I could beat this beef I am riding.

Keep the Allen faith because there is good times ahead.” Kenneth got another letter dated August 20, 1980, telling him of a second short visit from Shirley Doeckel, who was “willing to help me in court and tell it like it really was.” Defendant also wrote: “Hey, I hear a country music show is coming to town around September 3rd.” “Show,” Kenneth testified, was a code word for murder. Kenneth received a third letter dated August 26, stating, “remember September 3, around that date y’all be listening to a lot of good old ‘country’ music, okay? Just for me.

You know how I like ‘country.’ ” Yet another letter dated August 27, stated “now remember around September 3rd, have everything ready so y’all can go to that ‘country’ music show. I know y’all really ‘enjoy’ yourselves. I know you kids never liked ‘country’ music before. But I bet when you hear that dude on the ‘lead’ guitar you’ll be listening to it at least once a week, ha. Anyway, forget about rock and roll and get lost in the country. Ha, ha.” Soon after Hamilton was paroled Kenneth wired him transportation money and thereafter met him at the Fresno bus depot.

At Kenneth’s house, Hamilton confirmed he was there to murder Bryon and Ray Schletewitz, and asked to see the weapons he would be using. He explained he would not kill Shirley Doeckel as yet because she was helping him locate the other hit list witnesses. Hamilton’s girlfriend, Connie Barbo, joined him in Fresno.

During the next few days, she told acquaintances she had a chance to get a few thousand dollars and a hundred dollars worth of “crank” for “snuffing out a life.” On Thursday, September 4, Hamilton went to Kenneth’s house and got a sawed-off shotgun, a .32 caliber revolver, and seven shotgun shells from Kenneth, all to be used to murder Ray and Bryon Schletewitz at Fran’s Market. Hamilton discussed the market and said he knew there were two safes there, one in the wall and the other in the freezer. He left in the evening with Connie Barbo, telling Kenneth he was going to murder Ray and Bryon Schletewitz.

They returned about 9:45 p.m., however, explaining they aborted the execution because Connie objected to killing a 15-year-old Mexican boy who was in the store that night. The next evening Hamilton took from Kenneth 13 additional shotgun shells, 6 more cartridges, and went with Connie Barbo back to Fran’s Market. When they arrived at 8 p.m., just before closing time, Bryon Schletewitz and employees Douglas Scott White, Josephine Rocha and Joe Rios were there. Shortly after they entered Hamilton brandished the sawed off shotgun and Barbo produced the .32 caliber revolver.

Hamilton led Doug White, Josephine Rocha, Joe Rios and Bryon Schletewitz toward the stockroom and ordered them to lie on the floor. Hamilton told Doug White to get up and walk to the freezer, warning White he knew there was a safe inside. When White told Hamilton there was no safe there, Hamilton responded, “get out ‘Briant.’” At that point Bryon Schletewitz volunteered, “I am Bryon.” Following Hamilton’s demand, Bryon gave up his keys and assured Hamilton he would give him all the money he wanted.

While Barbo guarded the other employees, Bryon led Hamilton to the stockroom where, from seven to twelve inches away, Hamilton fatally shot him in the center of his forehead with the sawed-off shotgun. Hamilton emerged from the stockroom and asked White, “Okay, big boy, where’s the safe?” As White responded, “honest, there’s no safe,” Hamilton fatally shot him in the neck and chest at pointblank range. As Josephine Rocha began crying, Hamilton fatally shot her through the heart, lung and stomach from five to eight feet away. Meanwhile, Joe Rios had taken refuge in the women’s restroom.

Hamilton found him, swung open the restroom door, pointed the shotgun at Rios’ face, and shot him from three feet away. Rios, however, put up his arm in time to take the blast in the elbow, saving his life. Assuming Rios was dead, Hamilton told Connie Barbo, “let’s go baby,” and they fled through the front door, only to be spotted by a neighbor, Jack Abbott, who had come to investigate after hearing the shooting. As Connie Barbo retreated into the restroom, Hamilton and Abbott traded fire: Although hit, Abbott nevertheless managed to shoot Hamilton in the foot as he ran to his getaway car.

Barbo was apprehended by officers at the scene. Hamilton phoned Kenneth Allen later that evening and said that “he lost his kitten” and that “things went wrong at the store.” They arranged to meet and exchange cars, after which Hamilton drove to the Modesto home of Gary Brady, the Folsom inmate who had been paroled one month before Hamilton. While staying there for about five days, Hamilton told Brady he had “done robbery” and he had “killed three people for Ray,” referring to defendant as “the old Man.” He also had Brady’s wife write a letter to defendant asking him for the money he was owed for the job.

The letter, signed “Country,” gave Brady’s Modesto address as the return address. Shortly thereafter Hamilton was arrested after robbing a liquor store across the street from Brady’s apartment. The police seized from Hamilton an address book containing a list of names and addresses of those who had testified against defendant at the 1977 murder trial, i.e., Eugene Furrow, Barbara Carrasco, Benjamin Meyer, Charles Jones, Carl Mayfield, Shirley Doeckel and Ray and Bryon Schletewitz. When investigators visited Kenneth Allen’s home at about the same time, they were handed Hamilton’s mug shot by Kathy Allen. After an

article about the Fran Market murders appeared, defendant asked fellow inmate, Joe Rainier, “why don’t you testify against me . . . and see if you can help yourself or get some time off”? When Rainier said he could not do that, defendant patted him on the back and said, “you wouldn’t want to do that anyway because you do have a lovely daughter.” Shortly after the Fran Market murders, Kenneth Allen was arrested on drug charges and was interviewed about his knowledge of the murders. A week later, he contacted the police to offer his testimony in return for protective custody and his choice of prisons.

As will be fully explained below, he eventually entered an agreement whereby he promised to testify “truthfully and completely” in all proceedings against Hamilton, Barbo and defendant in exchange for which he would be allowed to plead to specified charges. (See post, pp. 1248-1249.) A complaint was filed in June 1981 against defendant for the Fran’s Market murders and conspiracy and Kenneth Allen thereafter testified at defendant’s preliminary hearing. Defendant was held to answer.

An information filed in June 1981 charged him with murdering Bryon Schletewitz (§ 187) (count 1), murdering Douglas Scott White (count 2), murdering Josephine Rocha (count 3), and conspiring to murder Bryon Schletewitz, Ray Schletewitz, Eugene Furrow, Barbara Carrasco, Benjamin Meyer, Charles Jones and Carl Mayfield (§ 182, subd. 1) (count 4). The information further alleged eleven special circumstances: five under count 1, three under count 2, and three under count 3. As to count 1, it was alleged defendant solicited the murder under that count (§ 190.2, subd. (b)), (

i) for the purpose of preventing testimony (§ 190.2, subd. (a)(10)); (ii) in retaliation for prior testimony (ibid.); (iii) and (iv) in addition to the murders charged in counts 2 and 3 (§ 190.2, subd. (a)(3)) and (

v) having previously been convicted of murder in 1977 (§ 190.2, subd. (a)(2)). As to count 2, it was alleged defendant solicited the murder under that count (§ 190.2, subd. (b)) (

i) and (ii) in addition to the murders charged in counts 1 and 3 (§ 190.2, subd. (a)(3)), and (iii) having previously been convicted of murder in 1977 (§ 190.2, subd. (a)(2)). As to count 3, it was alleged defendant solicited the murder under that count (§ 190.2, subd. (b)) (

i) and (ii) in addition to the murders charged in counts 1 and 2 (§ 190.2, subd. (a)(3)), and (iii) having previously been convicted of murder in 1977 (§ 190.2, subd. (a)(2)). Thereafter, as will be explained fully below, the prosecutor terminated Kenneth’s plea agreement after discovering Kenneth had written to defendant promising to change his testimony at trial in order to exculpate him.

Nevertheless, stating he wanted to testify truthfully, and having been fully advised of his rights and the fact that the previous plea agreement was terminated, Kenneth testified for the prosecution at a trial conducted in Glenn County. The jury heard 58 witnesses over 23 days. In addition to the evidence outlined above, defendant took the stand in his own defense. He denied any involvement in the Fran’s Market murders or in the conspiracy to execute the witnesses who testified against him in his previous trial.

He admitted on cross-examination, however, that he had told his “good dog,” Hamilton (“Country”), to go to Fresno. He admitted writing all the various letters received into evidence and conceded they referred to Hamilton’s impending visit to Fresno. He confirmed that the letters referred to Ben Meyer, Carl Mayfield, and Chuck Jones, and admitted that the phrase “taken care of” meant to kill. He acknowledged that he had access to mug shots where he worked with Hamilton in Folsom Prison, and admitted talking to Hamilton in the bleachers at the prison.

After being confronted with a tape recording, he also admitted ordering Kathy Allen to call the Schletewitzes to impersonate Mary Sue Kitts, and to pretend to be the mother of Bryon’s baby in order to induce the family to call off the Kitts murder investigation. Defendant also confirmed many of the details about his former acts and convictions about which Charles Jones, Carl Mayfield, Eugene Furrow, Benjamin Meyer, Shirley Doeckel and Barbara Carrasco had all testified.

Among other things, he described how he helped transport and dispose of Mary Sue Kitts’ body; he described in great detail his formula for executing “fool-proof” armed robberies of various K-Mart stores with his son Roger, Ben Meyer, and Allen Robinson; he described in detail his role in the Tulare K-Mart robbery; he maintained that “when a guy puts a rat jacket on himself [i.e., becomes a “snitch”], killing them would do them a favor”; he described how he brought Larry Green from Oklahoma to participate in the Visalia K-Mart robbery, and how they had planned to execute three or four additional robberies to make money for summer expenses; and he generally confirmed myriad other details of his role in the former acts and crimes testified to by the above witnesses.

Defendant’s daughter-in-law, Kathy, tried to exculpate him and implicate her husband as a drug-crazed, hallucinogenic mastermind of the Fran’s Market murder. She recalled, however, that Kenneth had discussed getting guns for witnesses with his father at Folsom Prison, and that Connie Barbo had told her that she and Hamilton could not leave any witnesses. She admitted that she had previously testified for defendant, that she had tried to falsify evidence about the murders, and that she had transmitted messages to Hamilton for defendant. Expert witness Dr.

Vincent Mirkil testified about the effects of methamphetamine, but admitted that he had never examined Kenneth Allen and did not know how much of such a drug Kenneth had taken. Three prison inmate witnesses, John Frazier, Henry Borbon, and Andrew Thompson testified that Hamilton, Allen, and Brady could not have met together in the Folsom yard. Thompson admitted that he called defendant “Dad” and would lie to protect him; Borbon’s testimony was impeached by another witness, Dexter Lasher, and a rebuttal witness, Eugene Rose. Defendant was found guilty as charged after three days of deliberation.

He thereafter admitted he had previously been convicted of murder.

The People’s evidence presented at the seven-day penalty trial showed defendant masterminded the following armed robberies: The August 12, 1974, armed robbery at the Safina Jewelry Store in Fresno in which $18,000 worth of jewelry was taken from the store safe; the September 4, 1974, armed robbery at Don’s Hillside Inn in Porterville in which $3,600 was taken from the safe and hundreds of dollars in cash and credit cards were taken from patrons at the scene; the February 12, 1975, residential armed robbery of William and Ruth Cross, an elderly Fresno couple, in which a coin collection valued at $100,000 was taken; the June 18, 1975, attempted robbery at Wickes Forest Products in Fresno, resulting in defendant’s arrest; the October 21, 1976, armed robbery at Skagg’s Drug Store in Bakersfield, in which Raoul Lopez (another stepson of Barbara Carrasco who was recruited by defendant) accidentally shot himself; the November 20, 1976, armed robbery at a Sacramento Lucky’s market, in which grocery clerk Lee McBride was shot by robber Raoul Lopez and sustained permanent damage to his nervous system as a result; the February 10, 1977, robbery at the Tulare K-Mart, in which over $16,000 in cash was taken; the March 16, 1977, Visalia K-Mart robbery, in which Larry Green held a gun to the head of employee Bernice Davis and subsequently shot employee John Attebery in the chest, permanently disabling him.

The evidence also showed that while in the Fresno County jail on June 27, 1981, defendant called a “death penalty” vote for inmate Glenn Bell (an accused child molester) and directed an attack on Bell during which inmates scalded Bell with over two gallons of hot water, tied him to the cell bars and beat him about the head and face, and thereafter shot him with a zip gun and threw razor blades and excrement at him while he huddled in his blanket in the comer of the cell.

The People’s evidence established defendant repeatedly threatened that anyone who “snitched” on the Allen gang would be “blown away” or killed, and that defendant thwarted prosecution of the attempted robbery at Wickes Forest Products by threatening the chief prosecution witness and his family. In addition, defendant’s prior convictions of (

i) conspiracy, first degree murder and first degree burglary and his prior convictions of (ii) first degree robbery, attempted robbery and assault with a deadly weapon were introduced into evidence at the penalty phase.

It was also stipulated that the guilt phase testimony of Ray Schletewitz, Carl Mayfield, Charles Jones, Eugene Furrow and Benjamin Meyer concerning the prior conspiracy to murder and the first degree murder of Mary Sue Kitts in August 1974, the robbery at the Safina Jewelry Store on August 12, 1974, the burglary and robbery of the Tulare K-Mart Store on February 10, 1977, and the assault with a deadly weapon, burglary, conspiracy to commit robbery, and attempted robbery at the Visalia K-Mart Store on March 16, 1977, could be considered by the jury at the penalty phase without recalling these witnesses.

Defendant put on two witnesses. His former girlfriend, Diane Harris, testified to his good character. She explained that defendant had helped her financially both before and after her marriage to Jerry Harris, that he helped rush her to the hospital for surgery on one occasion, that he was good to children and that he wrote poetry. She did admit, however, that he had threatened to kill her husband, Jerry Harris.

Defendant’s second penalty witness, San Quentin inmate John Plemons, testified he had instigated the assault on accused child molester, Glenn Bell, and that defendant had nothing to do with it, but had merely sat by while the incident occurred. This was rebutted by Correctional Officer Delma Graves who testified Bell told her immediately after the incident that defendant had instigated the assault.

The vast majority of the prosecutor’s penalty argument was devoted to recounting the details of defendant’s present and prior convictions and uncharged crimes as aggravating factors militating in favor of the death penalty. After deliberating one day, the jury returned a verdict of death. The court subsequently denied defendant’s “statutory motion for a new trial” and sentenced him to death. II. Guilt Phase Issues 1.

Kenneth Allen’s Plea Bargain Defendant claims he was denied a fair trial because of an allegedly unlawful plea bargain between the district attorney’s office and his son Kenneth—a key witness for the prosecution. On September 9, 1980, Kenneth Allen was arrested on drug charges. That same day, the police conducted a tape-recorded interview with Kenneth concerning the Fran’s Market incident. Kenneth initially maintained that during the first week in September his cousin had stayed one night with Kenneth and his family.

After continued questioning, Kenneth eventually admitted the visitor was not his cousin but a man named Billy. He also admitted defendant had told him to expect a call from Billy, who would be coming to town and would need a place to stay. Kenneth insisted that Billy had spent only two nights with him and that he had driven Billy to the bus depot early in the morning of September 5. Six days later, after Kenneth learned that Billy Hamilton had been arrested, he asked for another interview with the police.

At the outset of the tape-recorded interview Kenneth said he had certain information about defendant’s participation in the Fran’s Market incident and that, in exchange for this information, he wanted protective custody, release on his own recognizance and his choice of prisons. The district attorney agreed to Kenneth’s demands on the condition he agree to testify truthfully at the preliminary hearing of Hamilton and Barbo.

It was made clear to Kenneth that no “deal” was being made concerning either the drug charges or possible homicide charges against him and that he would not be given immunity from prosecution for anything he told the police. With his attorney present, Kenneth agreed to the district attorney’s terms and was advised of his Miranda rights. Kenneth explained that during a visit with his father at Folsom Prison on August 17, 1980, defendant told him Hamilton would be coming to Fresno to “get some things done for me,” including the robbery of Fran’s Market and the murder of Ray and Bryon Schletewitz.

Kenneth admitted he did not take Hamilton to the bus depot as he had earlier claimed, but insisted he did not provide Hamilton with the shotgun used in the killings. Approximately three weeks later, on October 7, 1980, Kenneth initiated a third interview with law enforcement officials.

After consulting with his attorney by phone, and having again been advised of his Miranda rights, Kenneth told the police that during his August 17 prison visit defendant told him Hamilton was going to kill everyone who testified against defendant in his 1977 murder trial so that, in the event defendant’s pending appeal was successful, there would be no witnesses to testify against him on retrial. Kenneth further stated that he was supposed to provide Hamilton with weapons for the Fran’s Market killings and did, in fact, provide Hamilton with transportation, money, a shotgun and a revolver.

On October 15 and 16, Kenneth testified at the Hamilton-Barbo preliminary hearing in exchange for release on his own recognizance and his choice of prisons. His testimony was generally consistent with his third statement to police and implicated defendant, Hamilton and Barbo in the Fran’s Market killings. Four months later, in February 1981, Kenneth entered into a plea agreement under which he agreed to testify truthfully and completely in all proceedings against Hamilton, Barbo and defendant, in exchange for which he would be allowed to plead to a violation of

section 32 (accessory to murder) and Health and Safety Code

section 11377, subdivision (a) (possession of a controlled substance). It was Kenneth’s understanding that the district attorney would recommend a three-year sentence for each offense to run concurrently and that, with time off for good behavior, he would be out of prison in two years. In mid-May 1981 Kenneth testified at defendant’s preliminary hearing. As with the Hamilton-Barbo preliminary hearing, Kenneth’s testimony was generally consistent with the statement he gave to police on October 7, 1980. On July 10, 1981, however, Kenneth sent a letter to defendant in prison.

The letter, which was intercepted by prison officials, stated in part: “Dad Ive been doing a lot of thinking about all this shit and I’m still confused but I believe things will work out okay for everybody but me but that’s okay I haven’t got anything to live for anyway, but you do so I’m going to tell them the real truth the next time we go to court, and that should clear you but I want the death penalty. But I dont want the gas chamber. I want to donate my body to people who can use the parts.

Like my heart, lung, kidneys, eyeball, and all that stuff, if I can die that way I’ll feel okay about death in the Bible it say no greater deed can a man do than to give his life, so another may live so after I clear you with the truth, and give my organs to people who need them maybe one of you will live and God might have grace on me for what I’m doing with my life .... [11] I would do anything just for the chance to make our marriage work just so I could then grow up like a real dad should do but its not in the stars for me to get that chance so maybe this way they will remember me as the man who gave them back there grandfather and that way you wont let them forget me will ya.

I hope not at least everything they see or hear, from you they may think of me from time to time I sure hope so. Dad we both know these people just want an Allen so after I tell them the truth they will have one, that way they may lighten up on you I sure hope so.” On July 22, 1981, Deputy District Attorney Jerry Jones and Investigator William Martin confronted Kenneth with the letter. He admitted writing it and stated his testimony at defendant’s preliminary hearing had been untruthful in a number of respects.

Specifically, he told Martin and Jones that Hamilton had come to Fresno not to execute anyone, but to help Kenneth “fence” some guns. He claimed that he and Hamilton had discussed the robbery but no killing was ever mentioned or planned. Thereafter Jones told Kenneth that in his opinion, Kenneth had violated the plea agreement and the agreement was therefore terminated. Kenneth was then read his Miranda rights and, when he asked to speak with his attorney, the questioning ceased. Kenneth was subsequently charged with the Fran’s Market killings.

A week later, while being transported to his arraignment, Kenneth told Martin that his testimony in the preliminary hearings of Hamilton, Barbo and defendant was in fact truthful, that he intended to testify to the same story in the future, and that what he had written in the July 10 letter to his father was not true. In late August Kenneth’s attorney requested a meeting with Martin. With his attorney present, and having been advised of his Miranda rights, Kenneth explained he wrote the July 10 letter because of pressure from his wife, Kathy, who had a very close relationship with defendant.

Kenneth told Martin that in exchange for writing the letter, his wife resumed giving him sexual favors during “contact visits,” he was able to receive some drugs while in jail, and conditions had generally improved for him as a result of writing the letter. He assured Martin the story he told at the preliminary hearings was the truth. Nevertheless, the district attorney’s office maintained the plea agreement with Kenneth was terminated. Before defendant’s trial, a hearing was held to determine whether Kenneth would testify.

In response to questions from both the prosecution and the court, Kenneth stated repeatedly that he knew it was the district attorney’s position there was no plea agreement and that he would receive nothing for his testimony in defendant’s case, and that by testifying he would waive his privilege against self-incrimination. Nevertheless, Kenneth stated, he wanted to testify truthfully and honestly at defendant’s trial. Kenneth testified at trial for the prosecution.

His testimony regarding defendant’s involvement in the Fran’s Market killings was consistent with the testimony he had given at defendant’s preliminary hearing and at the preliminary hearing of Hamilton and Barbo. Kenneth also testified at length concerning his three tape-recorded statements to the police, his agreement to testify at the Hamilton-Barbo preliminary hearing in exchange for release on his own recognizance and his choice of prisons, and his plea agreement with the district attorney’s office.

He testified he wrote the July 10 letter at his wife’s request in an attempt to confuse law enforcement officials and to discredit his own testimony. He explained he believed his testimony was indispensable to the prosecution’s case against his father and that by discrediting his own testimony he might help defendant escape a murder conviction. Kenneth further testified that he wrote the July 10 letter believing it would have no legal effect on his plea agreement and that as long as he testified truthfully and willingly at defendant’s trial, the plea agreement would be binding.

On both direct and cross-examination, Kenneth made clear he understood it was the position of both the district attorney’s office and the attorney general’s office that no plea agreement then existed. Nevertheless, Kenneth testified he believed the February plea agreement was still in effect, and that by testifying at defendant’s trial he was trying to comply with the agreement. He denied, however, that he was fabricating his trial testimony in an attempt to induce the district attorney’s office to honor the agreement.

Defense counsel asked Kenneth whether he felt the district attorney’s office would have to abide by the plea agreement if Kenneth testified at trial as he had testified at defendant’s preliminary hearing, to which Kenneth answered, “Yes.” Defendant argues Kenneth’s plea agreement was conditioned on his trial testimony conforming to the statement he gave the police on October 7, 1980.

Because this placed Kenneth under a strong compulsion to testify in conformance with his October 7 statement, defendant argues, the plea agreement and his son’s highly incriminating testimony denied him a fair trial. ‘ ‘ [A] defendant is denied a fair trial if the prosecution’s case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.” (People v.

Medina (1974) 41 Cal.App.3d 438, 455 [116 Cal.Rptr. 133].) Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police (id., at p. 450), or that his testimony result in the defendant’s conviction (People v. Green (1951) 102 Cal.App.2d 831,837-839 [228 P.2d 867]), the accomplice’s testimony is “tainted beyond redemption” (Rex v. Robinson (1921) 30 B.C.R. 369) and its admission denies the defendant a fair trial.

On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid. (People v. Fields, supra, 35 Cal.3d 329, 361; People v. Lyons (1958) 50 Cal.2d 245, 266 [324 P.2d 556].) Defendant repeatedly asserts the record discloses Kenneth’s testimony was immutably tied to his pretrial statement of October 7, 1980.

He appears to argue that because the district attorney’s office offered Kenneth a plea bargain only after his October 7 statement, it was implicitly made clear to him that his testimony at trial was expected to be the same as his statement to the police on October 7. This, defendant argues, is indistinguishable from People v.

Medina, supra, 41 Cal.App.3d 438, in which, the court held the defendant was denied a fair trial because two key witnesses had testified pursuant to a plea agreement requiring that they not “materially or substantially change” their testimony from the tape-recorded statements they had earlier given to police. On the contrary, we believe this case is much more similar to People v. Fields, supra, 35 Cal.3d 329, in which we upheld the plea agreement.

In Fields, defendant’s sister, Gail, entered into a plea agreement under which she agreed to testify “as to the truth” of certain events in exchange for her plea of guilty to being an accessory to murder. In response to questions by defense counsel, Gail stated she agreed to testify in accord with her last statement to the police, but in response to the district attorney’s questions, she stated that she had agreed only to tell the truth.

After noting that Gail’s statements concerning the terms of the plea agreement were not necessarily inconsistent, we held these statements were insufficient to demonstrate either that the plea bargain required her to testify in conformance with her earlier statement to police or that she so understood the agreement. “We recognize that a witness in Gail Fields’ position is under some compulsion to testify in accord with statements given to the police or the prosecution.

The district attorney in the present case obviously believed that Gail’s last statement was a truthful account, and if she deviated materially from it he might take the position that she had breached the bargain, and could be prosecuted as a principal to murder. But despite this element of compulsion, it is clear, and the cases so hold, that an agreement which requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain.

We believe the requirements of due process, as explained in Medina, are met if the agreement thus permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account.” (Id., at p. 361, citation omitted.) The plea agreement between Kenneth and the Fresno County District Attorney’s office, like the plea bargain in Fields, was conditioned only on Kenneth’s truthful and complete testimony in all proceedings against defendant, Hamilton and Barbo.

The fact that he, like Gail Fields, may have felt some compulsion to testify in accord with his earlier statement to the police does not, in itself, render the agreement invalid. There is nothing in the record to suggest Kenneth was ever told or led to believe he would receive the benefit of the plea bargain only if his testimony conformed with his October 7 statement. Furthermore, contrary to defendant’s contention, Kenneth was not placed “under a strong compulsion to testify in a particular fashion” merely because he was offered the plea agreement only after his October 7 statement.

Surely, law enforcement officials cannot be expected to offer plea agreements only to those individuals who have made no prior statements and expressed no views concerning the events in question. Such a rule would have the practical effect of prohibiting all plea agreements— “a result neither required by reason nor compelled by precedent.” (People v. Meza (1981) 116 Cal.App.3d 988, 994 [172 Cal.Rptr. 531].) Defendant alludes to, but does not clearly articulate, two other arguments in support of his contention that the plea agreement was unlawfully coercive.

The first argument concerns the terms of the agreement itself. Under the agreement, Kenneth agreed to testify truthfully and completely in all future proceedings against defendant, including both the preliminary hearing and the trial. Thus, once Kenneth testified against defendant at the preliminary hearing, it could be argued he was under a strong compulsion to testify the same way at trial; if he told a different story at defendant’s trial he would necessarily have given untruthful testimony in one of the two proceedings and the plea agreement could be terminated by the district attorney’s office.

In this respect, it could be argued the plea agreement did not permit Kenneth “to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account.” (People v. Fields, supra, 35 Cal.3d at p; 361.) Although there is superficial appeal to this view, ultimately it is unpersuasive. The agreement required only that Kenneth testify truthfully and completely, and it is clear that under the agreement, he was free to testify in any manner at defendant’s preliminary hearing.

Assuming Kenneth nevertheless lied in his preliminary hearing testimony, any pressure on him to repeat the lie at defendant’s trial arose from his own conduct in giving perjured testimony—not from the agreement or any conduct of the district attorney’s office. Neither logic nor precedent suggests that an otherwise proper agreement conditioned only on truthful testimony suddenly becomes improper when the witness breaches the agreement by committing perjury.

The second argument alluded to is that the district attorney’s repudiation of the agreement in response to Kenneth’s July 10 letter somehow created an undue compulsion on Kenneth to testify in conformance with his earlier statements. The government’s repudiation, however, sent no message to Kenneth and created no compulsion that did not already exist.

Even in the absence of the government’s repudiation, Kenneth must have known that if he changed his testimony at trial to completely exculpate defendant, the district attorney’s office might take the position that the agreement had been violated and that Kenneth could be fully prosecuted. The fact that, because of Kenneth’s conduct, the district attorney’s office expressed this position before Kenneth’s testimony, does not render the agreement or its repudiation unlawfully coercive.

Moreover, at the time of the repudiation, Kenneth had already testified at defendant’s preliminary hearing and therefore knew that any significant change in his testimony at trial would constitute a violation of the agreement because it would necessarily mean that his testimony on one of the two occasions was untruthful. As we have already explained, this alone does not make the plea agreement unlawful.

We note that the situation might be different if, after intercepting the letter, the district attorney had threatened to repudiate the agreement if Kenneth changed his testimony at defendant’s trial, or if the district attorney had repudiated the agreement immediately but offered to reinstate it if Kenneth would stand by his original version of the facts. Here, however, the district attorney’s office repudiated the agreement immediately and made it clear that as far as it was concerned, there was no agreement, no matter what Kenneth did or testified to in the future.

Under these circumstances, the district attorney’s repudiation cannot reasonably be viewed as a coercive threat. For the foregoing reasons, we conclude that neither the timing of the plea agreement, nor its terms, nor its repudiation by the government placed Kenneth under such a strong compulsion to testify in a particular fashion as to deny defendant a fair trial. 2. Photographs of Victims Over defendant’s objection, the trial court admitted into evidence nine color photographs of the murder victims.

Six of the photographs were taken at the scene of the crime and depict the location and position in which each of the victims was found; most of these show the victims lying in a pool of blood. The other three photographs were apparently taken in the coroner’s office before the autopsies were performed. Two of these latter three photographs are of Josephine Rocha’s naked upper torso, showing in detail the shotgun wound to her left side. Rocha’s bloody face, with open eyes, is visible in both photographs.

The third photograph is a closeup of the large hole left in Doug White’s neck by the shotgun blast. ‘“The admission of photographs of victims lies primarily within the discretion of the trial judge who determines whether their probative value is outweighed by their prejudicial effect.’” (People v. Fields, supra, 35 Cal.3d at p. 372, quoting People v. Frierson (1979) 25 Cal.3d 142, 171 [158 Cal.Rptr. 281, 599 P.2d 587], opn. of Richardson, J.) “[A] trial court’s refusal to exclude otherwise admissible photographs under [Evidence Code]

section 352 will not be disturbed on appeal unless the prejudicial effect clearly outweighs the photos’ probative value. (See People v. Pierce (1979) 24 Cal.3d 199, 211 [155 Cal.Rptr. 657, 595 P.2d 91]; People v. Murphy (1972) 8 Cal.3d 349, 363 [105 Cal.Rptr. 138, 503 P.2d 594].)” (People v. Ramos (1982) 30 Cal.3d 553, 576-577 [180 Cal.Rptr. 266, 639 P.2d 908].) In admitting the photographs, the trial court stated that they “illustrate and are supportive of the testimony of the autopsy physician, the testimony of Mr.

Rios [the lone surviving victim], and the testimony of others as to the manner in which these killings were done . . . and supportive of the theory of the prosecution that this was not a robbery, this was not an isolated crime. This was a crime committed for specific purposes. It was an execution.” Although the court noted the photographs “generally depict a certain amount of gore and . . . unpleasant circumstances,” it concluded their “substantial relevance” outweighed any prejudicial effect that might result from admission.

In so holding, the court noted the nine photographs were not overly gruesome when compared to photographs the court had seen in other cases or when compared to other photographs of the same victims that had been marked as exhibits but not offered into evidence by the prosecution. The nine photographs were clearly relevant to corroborate and illustrate the testimony of the autopsy surgeon, Dr. Nelson, concerning the nature and extent of the wounds (see, e.g., People v. Murphy (1972) 8 Cal. 3d 349, 365 [105 Cal.Rptr. 138, 503 P.2d 594]; People v.

Terry (1970) 2 Cal.3d 362, 403 [85 Cal.Rptr. 409, 466 P.2d 961]; People v. Brawley (1969) 1 Cal.3d 277, 295 [82 Cal.Rptr. 161, 461 P.2d 361]) and to corroborate the testimony of Joe Rios and others concerning the location and manner in which the victims were shot. (People v. Ramos, supra, 30 Cal.3d at p. 577; People v. Atchley (1959) 53 Cal.2d 160, 168 [346 P.2d 764].) In addition, the nature of the wounds and the location of the bodies depicted in the photographs, when considered in conjunction with the explanatory testimony of Dr.

Nelson and Rios, do lend some support to the prosecution’s theory that the victims were shot at close range, in an “execution-style fashion.” (See People v. Ramos, supra, 30 Cal.3d at p. 576.) Defendant argues, however, that even if the photographs were relevant, the photographic evidence was cumulative and therefore was unnecessary to establish any disputed issue. Dr. Nelson testified in great detail concerning the nature, extent and location of each wound, the cause of death of each victim, and the probable position of the assailant and the shotgun at the moment the wounds were inflicted.

The prosecutor twice used the bailiff and an assistant prosecutor as models to help illustrate Dr. Nelson’s testimony. Dr. Nelson was asked no questions on cross-examination and defendant offered no evidence to challenge his testimony. Rios testified to the sequence of events from the time Hamilton and Barbo entered Fran’s Market until the time they left. He explained that the victims were all told to lie down on the floor, that White was shot from three feet away while still on the floor, and that Rocha was apparently shot in the same manner.

Rios used a diagram to indicate the relative positions of Hamilton, Barbo, the victims and himself. Although photographic evidence may properly be admitted even if largely cumulative (People v. Murphy, supra, 8 Cal.3d at pp. 364-365; People v. Terry, supra, 2 Cal.3d at p. 403; People v. Harrison (1963) 59 Cal.2d 622, 627 [30 Cal.Rptr. 841, 381 P.2d 665]; People v. Love (1960) 53 Cal.2d 843, 853 [3 Cal.Rptr. 665, 350 P.2d 705]; but cf. People v. Smith (1973) 33 Cal.App.3d 51, 69 [108 Cal.Rptr. 698]), the necessity of admitting such evidence is a relevant factor in assessing its probative value (People v.

Love, supra, 53 Cal.2d at p. 856; People v. Logan (1953) 41 Cal.2d 279, 285 [260 P.2d 20]; People v. Smith, supra, 33 Cal.App.3d at p. 69; People v. Burns (1952) 109 Cal.App.2d 524, 542 [241 P.2d 308]). Here, the photographs were not only cumulative but the testimony they were offered to corroborate was itself detailed and essentially uncontested. Furthermore, to the extent this testimony needed clarification or illustration, this was already accomplished through the use of models and diagrams.

Although the nature of the wounds and the location of the bodies depicted in the photographs provide some support for the prosecution’s theory that these were “execution-style” slayings, the photographs appear to add nothing to the testimony of Dr. Nelson and Rios in this regard. On the other hand, the photographs are relatively small and, although quite unpleasant to view, they are not exceptionally gruesome. The photographs were all taken either at the scene of the crime shortly after it occurred or at the coroner’s office before the autopsies.

Thus, unlike the photographs in some cases, these photographs do not show the victim’s bodies in a badly decomposed condition (People v. Cavanaugh (1955) 44 Cal.2d 252 [282 P.2d 53]) or after they had been grossly disfigured during autopsy. (Compare People v. Redston (1956) 139 Cal.App.2d 485, 490 [293 P.2d 880] and People v. Burns, supra, 109 Cal.App.2d 524, 541-542, with People v.

Atchley, supra, 53 Cal.2d at p. 168.) We note also that in admitting the photographs, the trial court indicated it had reviewed many photographs in many other cases and that, in comparison to those, as well as to other photographs of the Fran’s Market slayings not offered into evidence by the prosecution, the nine photographs to which defendant objects are not especially gory. Although the photographs were of limited probative value and could properly have been excluded, it is not clear the trial court abused its discretion in admitting them into evidence. In any event, any error was plainly harmless.

There was overwhelming evidence to support the prosecution’s version of what transpired at Fran’s Market that evening and the evidence linking defendant to the slayings was certainly substantial, if not overwhelming. Moreover, as the People argue in their reply brief, the inflammatory nature of the photographs was relatively slight in comparison with the heinous nature of the crime presented to the jury through the testimony of witnesses. We therefore conclude it is not reasonably probable the jury would have reached a different result had the photographs been excluded. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) 3. New Trial Motion Defendant contends he is entitled to a new trial because, he claims, the court failed to rule on his motion for new trial before pronouncing judgment. (§ 1202.) On November 22, 1982, a hearing was held to consider the presentencing report, the statutory application for modification of verdict (§ 190.4, subd. (e)) and defendant’s motion for new trial, as well as for the pronouncement of sentence.

Before the hearing, defendant had submitted a memorandum of points and authorities in support of his motion for new trial, based on the allegedly unlawful plea agreement between his son and the government. At the beginning of the hearing the court stated: “[Tjhere has been filed in this case a memorandum of points and authorities in support of a motion for new trial. Now there is a statutory motion for new trial which, of course, the court would have to take up and consider.

In any event I have and will consider those points and authorities and the arguments made both for and in opposition under the statutory motion. I will, however, if counsel desires give you a further opportunity at this time to voice your motion.” (Italics added.) Defense counsel and the prosecutor then presented their arguments concerning the legality of the plea agreement with Kenneth Allen and its effect on the fairness of defendant’s trial. At the conclusion of their argument, the trial court stated: “Gentlemen ...

I will reserve ruling on the matter, I will consider these comments incidental to the ruling that I will make on the statutory application.” (Italics added.) The trial court went on to explain why it felt defendant’s arguments lacked merit. Following this explanation, the court once again said it would consider counsel’s remarks “incidentally” to its ruling “on the statutory application for a new trial and modification of verdict under

section 190.4.” The court then independently reviewed each count against defendant, finding the verdict on each to be “supported by abundant and convincing evidence” and “consistent, in accord with and not contrary to, the law of the State of California.” The court found each special circumstance “to be true beyond a reasonable doubt and to a moral certainty” and, following a detailed review of the relevant considerations and evidence, concluded that “this is one of the most serious cases ever presented to this or, possibly, any other court in California” and that, under these facts, no modification was warranted. The court therefore denied the statutory application under

section 190.4, subdivision (e). Having denied the statutory application, the court asked whether there was “any legal cause why judgment and sentence of the court should not now be pronounced.” Both defense counsel and the prosecutor answered “No,” and defendant was then sentenced to death. Defendant now contends the trial court never ruled on his motion for new trial and, therefore, he is entitled to a new trial under

section 1202. It is true the court never expressly denied defendant’s motion for new trial. It is abundantly clear from the record, however, that the court treated the statutory application under

section 190.4 and defendant’s motion for new trial essentially as a single motion, and that in denying the statutory application, the court intended to deny defendant’s motion for a new trial as well. The court repeatedly referred to the statutory application as a “statutory motion for new trial” and repeatedly stated it would consider defendant’s points and authorities and oral argument “under the statutory motion,” and “incidental to the ruling” on the statutory application.

Although it would have been preferable for the court to have expressly ruled on the two motions individually, under the circumstances of this case the court’s ruling on the statutory application was tantamount to a ruling on defendant’s motion for new trial. Thus, the trial court did not “neglect to determine” defendant’s motion, and he is not entitled to a new trial under

section 1202. 4. Restraint of Defense Witness As explained above, Folsom Prison inmate John Frazier was called as a witness for the defense. After a hearing outside the presence of the jury to determine whether Frazier should be restrained while testifying, and over the strenous objection of defense counsel, Frazier was restrained during his testimony by a nylon strap, approximately one-half inch wide, placed around his ankles and secured to the legs of his chair.

He was seated in the witness chair and the restraints were applied before the jury was brought into the courtroom; following his testimony the court called a recess so that the restraints could be removed out of the jury’s presence. Defendant claims the court erred in ordering Frazier be restrained during his testimony. “[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of manifest need for such restraints.” (People v.

Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1], fn. and citations omitted.) When this “manifest need” appears on the record, the court is vested with discretion to order the physical restraint most suitable for a particular defendant under the circumstances. (Id., at p. 291.) Nevertheless, “[t]he imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.” (Ibid.) These rules apply to defense witnesses as well as defendants. (Id., at p. 288, fn. 4.) At the hearing held before Frazier testified, the prosecution presented numerous documents to support its claim that restraints were necessary.

The first of these documents is a 14-page report of the California Board of Prison Terms prepared in connection with a parole consideration hearing. It details the bizarre circumstances surrounding the five murders for which Frazier was convicted, and summarizes the findings of a number of psychiatric evaluations.

The most recent psychiatric evaluation had been conducted eight months previously, at which time the examining psychiatrist diagnosed Frazier as having a “paranoid personality disorder with antisocial behavior manifestation,” and noted that “the prognosis would be guarded regarding his adjustment in the free community at this time.” In an earlier evaluation, conducted in March 1971, the examining psychiatrist reported a diagnosis of “schizophrenia, paranoid type with antisocial behavior”; noted that Frazier’s behavior “must be considered unpredictable”; and observed that “in the outside community setting, the behavioral prognosis appears extremely poor and it seems rather obvious that he would constitute an exceedingly high risk in an uncontrolled setting.” The other documents relied on by the prosecution include a report listing Frazier’s disciplinary violations while in prison; correspondences between Frazier and prison officials regarding a number of the disciplinary violations; and a series of memoranda from prison officials explaining to Frazier why he would not be allowed to receive various martial arts publications sent to him in prison.

From the disciplinary report and related correspondences, it appears Frazier committed 13 disciplinary violations over IOV2 years. The most recent violation, and apparently the one officials considered the most serious, involved spitting in a prison guard’s face and allegedly threatening to “get” the guard and to “hit a cop.” Frazier denied making the threats and maintained he spit at the guard only after the guard hit and spit on him. In addition to these documents, the prosecutor recounted a recent phone conversation he had with Dr.

Fort—a psychiatrist who apparently was involved in Frazier’s murder prosecution. Dr. Fort told the prosecutor that when he had last examined Frazier three years earlier, Frazier was a “paranoid schizophrenic, psychotic.” According to the prosecutor, in Dr. Fort’s opinion Frazier was extremely dangerous, very resentful of authority figures, and quite probably would “fly off the handle” if challenged in court by an authority figure; therefore, Dr. Fort recommended some form of restraint be used on Frazier.

Based on the information provided by the prosecution, the court ordered that Frazier be restrained during his testimony. The court stated that “if we were dealing with a person who was stable, who I felt was stable, I wouldn’t consider shackling for a moment.” The court stated, however, it believed Frazier was a “dangerously unbalanced” individual who, as a paranoid schizophrenic, might well become “agitated” under the stress of cross-examination. The court observed Frazier had committed five murders under bizarre circumstances and expressed concern over Frazier’s apparent “expertise” in martial arts.

The court also noted the sheriff’s office had indicated, through the Attorney General, it believed Frazier was very dangerous. In ordering Frazier restrained, the court stated it was concerned not only for the safety of those in the courtroom but also about the effect a violent outburst might have on defendant’s right to a fair trial.

As we stated in Duran, when the court’s determination is made in accordance with the guidelines established in that opinion the court’s decision “cannot be successfully challenged on review except on a showing of a manifest abuse of discretion.” (16 Cal.3d at p. 293, fn. 12.) The trial court here conducted a special hearing to determine the need for restraints, carefully considered the arguments of both counsel, and explained in some detail on the record its reasons for ordering restraints.

Furthermore, the restraints used were minimally obtrusive and were placed around, and removed from, Frazier’s ankles outside the jury’s presence. The Courts of Appeal have generally read Duran as holding that “it is the defendant’s conduct in custody, now or at other times, or his expressed intention to escape or engage in nonconforming conduct during the trial that should be considered in determining whether there is a ‘manifest need’ for shackles.” (People v. Jacla (1978) 77 Cal.App.3d 878, 884 [144 Cal.Rptr. 23], citations omitted; see also People v.

Valenzuela (1984) 151 Cal.App.3d 180, 192-193 [198 Cal.Rptr. 469], and cases cited therein.) With the exception of the disciplinary report—not expressly relied on by the trial court—none of the evidence presented by the prosecution relates to Frazier’s present or past conduct in custody or in the courtroom, and most of the evidence seems of limited value in predicting Frazier’s future conduct in the courtroom.

On the other hand, it is questionable whether these factors should be controlling when, as the record shows here, the court’s finding of manifest need is based primarily on its belief that because of the witness’s psychological instability, his conduct is inherently unpredictable. Considering the evidence as a whole, the careful consideration given to the evidence by the trial court, and the unobtrusiveness of the restraints used, we conclude there was no “manifest abuse of discretion” in this case. In any event, any error was clearly harmless.

As already noted, a recess was taken before and after Frazier’s testimony so the jury would not see the restraints being placed on him or being removed. Indeed, there is no evidence that any of the jurors actually saw the restraints. (See, e.g., People v. Valenzuela, supra, 151 Cal.App.3d at p. 196; People v.

Zatko (1978) 80 Cal.App.3d 534, 551 [145 Cal.Rptr. 643].) Furthermore, contrary to defendant’s contention, Frazier was not a “key defense witness” whose testimony was “very crucial evidence to [defendant’s] case.” Defendant claims Frazier’s testimony was “crucial” because it directly contravened the testimony of a prosecution witness, “Joe Rainier . . . [who] testified that Rainier, Billy Ray Hamilton and [defendant] had met together on many . . . occasions.” Rainier, however, did not testify he had met with defendant and Hamilton many times.

In fact, he testified that defendant and Hamilton excluded him from most of their conversations and that on the “very few” occasions when the three of them talked together, the conversation lasted for only a short time because Hamilton always left shortly after Rainier approached. Furthermore, nothing in Frazier’s testimony conflicts with Rainier’s testimony concerning Rainier’s meetings with defendant and Hamilton. Indeed, Frazier was never asked and never testified about whether he had seen Rainier, defendant and Hamilton together at Folsom. Finally, we note Frazier was a defense witness—not a defendant.

As we stated in Duran, although the limitation on physical restraints applies to defense witnesses as well as defendants, “the prejudicial effect of shackling defense witnesses is less consequential since ‘the shackled witness . . . [does] not directly affect the presumption of innocence.’” (16 Cal.3d at p. 288, fn. 4, italics added.) For these reasons, we conclude that any error in restraining Frazier during his testimony was harmless. 5.

Juror Misconduct After the prosecution finished its rebuttal argument to the jury in the late afternoon, the court informed the jurors they would be sequestered for the evening but would not receive instructions and begin deliberations until the following day. While discussing the jury’s activities for the evening, the court said: “As far as your dinner and whatnot, of course, that is all taken care of and paid for. [11] There was a question by some who might like a slight glass of wine or a small beer or something like that. The State of California, and properly so, doesn’t buy liquor.

Now, if you want to have something to drink, that’s up to you. Let your conscience be your guide.” Solely on the basis of this comment, defendant now contends the jury engaged in misconduct by drinking intoxicating liquor. The consumption of alcoholic beverages by jurors, whether during the presentation of evidence or during deliberation, is clearly to be discouraged. The defendant as well as the People have a right to the reasoned, dispassionate and considered judgment of the jury.

Because the consumption of alcoholic beverages may impair one’s ability to perceive and judge, use of such intoxicants by jurors threatens both the fairness of the trial and the integrity of the entire judicial process. Nonetheless, although some older cases held that any consumption of alcoholic beverages by the jury is reversible error per se (see, e.g., People v.

Lee Chuck (1889) 78 Cal. 317, 332 [20 P. 719]), the rule is now fairly well established that a verdict will not be set aside in the absence of some showing or some reasonable ground to suspect that the consumption of alcohol actually affected the jurors’ capacity to competently perform their duties. (See, e.g., Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 412 [185 Cal.Rptr. 654, 650 P.2d 1171]; People v. Crooker (1956) 47 Cal.2d 348, 356 [303 P.2d 753]; People v.

Leary (1895) 105 Cal. 486, 493 [39 P. 24]; Annot. (1966) 7 A.L.R.3d 1040, 1040-1044.) There is absolutely no evidence in this case that any of the jurors consumed alcohol at any time during the trial, let alone that any of the jurors became so intoxicated they were unable to competently perform their duties. Defendant submits no affidavits—from jurors, trial counsel or court officials—to support his claim of juror misconduct.

Instead, he relies solely on the trial court’s comment to the jury that “if you want to have something to drink, that’s up to you.” This falls far short of the kind of showing necessary to establish juror misconduct. (See, e.g., People v. Manson, supra, 61 Cal.App.3d 102, 215.) Defendant’s reliance on People v. Lee Chuck, supra, 78 Cal. 317, is clearly misplaced.

In Lee Chuck it was undisputed the jury began deliberations in the mid-afternoon, recessed for dinner three hours later, spent approximately one hour at dinner during which time the jurors consumed a total of six quarts of wine and a half bottle of cognac, resumed deliberations immediately after dinner, and reached a verdict against the defendant within two hours. A number of affidavits submitted by the defendant indicated not only that the jurors had consumed alcohol but that the appearance and conduct of several of the jurors suggested they were intoxicated when they resumed deliberations after dinner.

Under these circumstances, we held that “ where the proof of the drinking is clear and undisputed, and that it was done while the jury were actually deliberating upon their verdict in a capital case, a verdict of conviction should not be allowed to stand.” (Id., at p. 332, italics added.) Whatever the continued vitality of the holding in Lee Chuck (see, e.g., People v. Leary, supra, 105 Cal. at p. 493), it clearly has no application to a case such as this, in which there is absolutely no evidence that any juror consumed any alcohol at any time during the trial.

Giving defendant every possible benefit of the doubt, at the very most one might infer from the court’s comments to the jury that at least some of the jurors did in fact have “a slight glass of wine or a small beer or something like that” during dinner on the night before their deliberations began. As we have explained, this alone would not constitute juror misconduct entitling defendant to a new trial. (See People v. Crooker, supra, 47 Cal.2d at p. 356.) We conclude defendant has failed to establish juror misconduct or that he was denied a fair trial. 6.

Cross-examination of Joseph Rainier Defendant next contends the court improperly restricted his cross-examination of prosecution witness Joseph Rainier regarding the details of Rainier’s first degree murder conviction. Before Rainier was called to testify, a conference was held outside the presence of the jury.

The prosecutor informed the court that he had shown defense counsel a document entitled “Impeachable Prior Felony Convictions (Joseph Rainier),” and that he and defense counsel had agreed the four felony convictions listed in the document were the only felony convictions that could be used to impeach Rainier. One of the listed felonies involved the first degree murder of a small child. Because of the sensitive nature of this offense, the prosecutor asked the court for a ruling that defense counsel not be allowed to cross-examine Rainier on the specific facts of the murder conviction.

Defense counsel objected to any such limitation, stating that if the fact that the murder victim was a small child became relevant during cross-examination, he planned to ask Rainier about this and other details of the offense. The court stated that although the existence of the prior murder conviction was clearly relevant for impeachment purposes, the court at that time could see no relevance to the specific circumstances surrounding the conviction.

The court therefore ruled that, absent some showing of relevance, defense counsel should limit his cross-examination to establishing the type of felony for which Rainier was convicted and the date and place of the conviction. The trial court made clear, however, that if at any point defense counsel believed the details of the murder were relevant to an issue in the case, the court would allow defense counsel to explore the matter on cross-examination, provided he made some suggestion or showing of relevance to the court outside the presence of the jury.

In response to the trial court’s ruling, defense counsel stated only: “If I do intend to ask questions that go to the factual background ... it might be appropriate to make an offer of proof. But I don’t even know if I’m going to get to that.” At no time during the conference on the matter or during the subsequent cross-examination of Rainier, did defense counsel ever suggest to the court a theory of relevance. Nor did he at any time indicate even that he believed the details of Rainier’s prior conviction were relevant or that he wished to question Rainier on the subject.

Defense counsel told the court only that if at some point during cross-examination he believed the facts underlying the conviction were relevant, he wanted to be able to ask Rainier about them. Defendant now contends for the first time on appeal that the details of Rainier’s first degree murder conviction were relevant to establish his motive for testifying and, therefore, evidence regarding the details of the murder was admissible under Evidence Code

section 780, subdivision (f). While serving a life sentence in Folsom Prison, Rainier received information that his life was in danger, apparently because his fellow inmates looked unfavorably on the fact that he had murdered a small child. Without explaining the reason his life was threatened, Rainier testified on direct examination that after learning his life was in danger, he became so concerned for his safety that he asked prison officials to put him in “lock up.” As Rainier later explained, being pl

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