THE PEOPLE, Plaintiff and Respondent, v. LUIS VALENZUELA RODRIGUEZ, Defendant and Appellant, 42 Cal. 3d 730

Opinion GRODIN, J. Luis Valenzuela Rodriguez appeals from a judgment of death imposed for the first degree murders of California Highway Patrol Officers William H. Freeman and Roy Paul Blecher on December 22, 1978. The jury found that appellant had personally used a firearm in both murders (Pen. Code, § 12022.5) and, as special circumstances justifying the death penalty, that he was convicted of more than one murder (§ 190.2, subd. (a)(3)) and that both victims were peace officers intentionally killed while in the performance of their duties (§ 190.2, subd. (a)(7)).

The crimes were committed in Yolo County, but pursuant to appellant’s motion for change of venue, the case was transferred to San Mateo County for trial. We find no prejudicial error in the guilt phase of appellant’s trial and will therefore affirm the convictions, as well as the allegations and special circumstances found true by the jury. Similarly, we will reject all but one of appellant’s challenges to the penalty phase, including his several attacks on the constitutionality of the 1978 death penalty law.

We will conclude, however, that in deciding the automatic application for modification of the death verdict (§ 190.4, subd. (e)), the trial judge failed to make an independent determination whether the death penalty was proper under the law and evidence, as the statute requires. We will therefore vacate the penalty judgment and remand to the trial court solely for a reconsideration of the modification application under the principles set forth in this opinion. I. Guilt Phase A.

Evidence of Guilt About 3:40 a.m. on December 22, 1978, two witnesses situated near the crossing of Harbor Boulevard over Interstate 80 in West Sacramento heard gunshots and saw red and other lights on the freeway. One of the witnesses, a deputy sheriff, drove onto the freeway to investigate. He discovered a California Highway Patrol cruiser parked by itself on the eastbound shoulder. The vehicle’s forward red light, right blinkers, and right spotlight were illuminated, but the headlights were off. The right front door was open.

The lifeless bodies of Officers Freeman and Blecher were lying to the right of the car. The principal witness against appellant was Margaret Klaess, who testified that appellant was the driver and she the sole passenger in a stolen car when it was stopped by the highway patrol at the time and place of the crimes. She stated that she saw appellant get out of the car, heard shots, and later was told by appellant about his struggling with the officers, handcuffing one of them, and shooting him in the head. Klaess met appellant in January 1978 and lived with him intermittently throughout that year.

About the end of November they moved into the Bel Air Motel in West Sacramento. Shortly thereafter they were arrested by the Richmond police, who impounded appellant’s panel truck. On December 20 they began hitchhiking from West Sacramento to Richmond in order to redeem the truck, planning to obtain the $70 for impoundment charges through robbery. At Davis they were picked up by the owner of a new Jeep pickup truck. Appellant displayed a gun and, at Vallejo, forced the host driver to hand over his wallet and get out, whereupon they drove to Richmond and abandoned the truck.

Next day a friend drove them from Richmond to Vallejo, where appellant obtained a temporary driver’s license under a false name. Klaess and appellant then went to two used-car lots where they absconded with used cars under the pretext of test driving them. They left the first car, a Volkswagen Beetle, at the second lot, where they obtained a 1977 dark brown Camaro. They drove it to San Francisco, where appellant went to the front door of a house and robbed the occupant of money at gunpoint. From San Francisco they drove to Sausalito and offered a ride to a woman prostitute, who got in the car.

In an industrial area of San Rafael they came to a stop; appellant pulled out a gun and forced the woman to surrender money and jewelry; and Klaess rifled the woman’s purse. After buying a pint of 151 proof rum, the pair drove to the house of their friend in Richmond, and then to the home of a second friend, Jeri Engel, in Crockett. Engel testified that Klaess was drunk when she arrived. After a while Engel and appellant went to a local bar where they purchased cocaine. Returning to Engel’s house, they shared the cocaine with Klaess and with Engel’s boyfriend.

Klaess and appellant then left Crockett for West Sacramento. The time of their departure is sharply disputed; Engel testified it was 2:30 a.m. Klaess slept until they had passed Vallejo. Appellant was driving faster than most of the traffic on the foggy freeway. As they neared Sacramento, appellant said, “Oh, shit, we’re getting red lighted,” and pulled over to the shoulder. An officer appeared at the driver’s window and asked appellant to step outside; he complied. Klaess heard voices at the rear of the Camaro and then, about two minutes after appellant’s exit, a shot from the right rear.

She looked out the passenger window and saw an officer lying in the ice plant, about 20 feet from the Camaro and about even with its front wheels, calling for help. Klaess slumped down in the seat below the window. Appellant reappeared at the driver’s side, acting nervous, and said that he could not find “the license.” Immediately, he left again and Klaess heard a shot, followed by a series of shots.

Appellant reappeared in half a minute and said in a panicky voice that he could not find the license or “the gun.” He left a third time and returned in 20 or 30 seconds with two silver revolvers, which were put in Klaess’s purse. Appellant then drove the Camaro off the freeway and parked near some apartments. They wiped off fingerprints, then proceeded on foot to the Bel Air Motel, sliding down a muddy embankment. On the way, they disposed of the two silver revolvers in a dumpster.

Appellant’s “Lee” brand pants, found at his motel room on December 24, were wet and muddy and had human blood on the left rear upper leg. According to Klaess, appellant was wearing “Lee” brand pants when they left Crockett. Immediately after discovery of the crimes, investigators found appellant’s temporary driver’s license on the ground near the highway patrol car. Also on the ground was a footprint of the heel and sole pattern of the brand of shoe (Famolare) worn by appellant at the time of his arrest on December 24. Several witnesses who were at the scene denied having worn that brand of shoe.

The victims had each carried a .38 revolver issued by the highway patrol. Neither gun was ever found, but the bullets found at the scene appeared to have been fired by them. Bullets fired into Freeman’s elbow, torso and head came from one of those guns; bullets fired into Freeman’s left shoulder and into the head of Blecher (who was handcuffed) came from the other. Two weapons were lying on the ground. One was an empty .38 revolver that Blecher carried as a backup weapon, and the other was a .22 revolver, introduced as exhibit 6.

Klaess testified that she had seen exhibit 6 in appellant’s possession at the Bel Air Motel and that he carried a gun on his person throughout the three robberies and the visit to Engel’s home immediately preceding the killings. Of the three robbery victims, one said that the gun used was shinier than exhibit 6 but otherwise similar; another said that the gun used was similar in color only shinier; a third said the gun used was similar but with a slightly larger barrel. Yet none of these witnesses testified that exhibit 6 was not the gun used by appellant.

Several witnesses, including friends with whom appellant had socialized earlier in 1978, testified to hearing him repeatedly express hatred of police and threaten to kill any police who would attempt to arrest him.

A woman with whom appellant had a romantic relationship in the fall of 1978 (while he was estranged from Klaess) testified that on several occasions he declared he did not like police and that if faced with arrest by police officers he would “blow them away.” She further testified that in mid-November a Sacramento police officer stopped her car, which was being driven by appellant with her as a passenger. As the officer approached and appellant was slowing to a stop, he muttered an obscenity, said, “We’re going to get busted,” and reached for a sawed-off shotgun that was in the back seat.

She pushed his hand away, covered the gun with her coat, and told him he was “crazy.” During the traffic stop, she asked random questions to distract the officer from appellant’s anger. After the officer left, she remonstrated that “getting a ticket is no big thing” and is not a reason to reach for a gun.

Appellant tore up the ticket and said, “I don’t want to get busted.” In addition to Klaess’s testimony of appellant’s admissions of participation in the murders, there was evidence that on December 23 appellant told a friend that he had “downed a couple of them [policemen]” and told a business partner, who mentioned burglar alarm problems, that he (appellant) had done something so “heavy” that the burglar alarm problems would seem like nothing. (Though the friend denied the incident while testifying, evidence was introduced of his describing it to the police while in custody.) Appellant and Klaess were arrested in or near Richmond during the early morning hours of December 24 and charged with the murders of Officers Freeman and B lecher.

B. Guilt Phase Defense Appellant testified in his own behalf. Though denying participation in the murders, he admitted most of the events of December 20 and 21 testified to by Klaess. Thus, he admitted the following: On December 20, he and Klaess, while hitchhiking from West Sacramento to Richmond, robbed the driver who picked them up in Davis of both his wallet and his pickup truck, which they abandoned in Richmond. Next day appellant obtained a temporary driver’s license under a false name, and he and Klaess absconded with the two used cars in Vallejo.

They drove in the stolen Camaro to San Francisco, where appellant robbed a resident at the latter’s front door. They committed the robbery against the woman hitchhiker in San Rafael. Appellant testified, however, that the weapon he used in the robberies was a .38 caliber handgun belonging to Klaess, which she kept in her purse, and which he returned to her after each robbery. He denied owning a handgun at that time and denied recognizing exhibit 6, the .22 caliber revolver found at the crime scene.

Appellant also described his visit, along with Klaess, to the home of Jeri Engel in Crockett late in the evening of December 21. The most important difference between his account of that visit and that of the prosecution witnesses was his testimony that he and Klaess departed Crockett for West Sacramento at 1:30 a.m. rather than at 2:30 a.m. To corroborate his version of the time, he called two witnesses who testified to seeing him and Engel at the bar in Crockett no later than midnight.

He also called Wanda Hawthorne, who testified that she and a friend were driving from San Francisco to Sacramento that night and noticed a brown Camaro, with driver and one passenger, which followed the Hawthorne car between Vacaville and Davis. She stated she first noticed the Camaro about 2 a.m., but also testified that she left San Francisco at 1:30 a.m. and arrived at her friend’s home in Sacramento about 3:45 a.m. Appellant testified that he and Klaess drove from Crockett to West Sacramento without incident, thus contradicting Klaess’s testimony of their being stopped by the highway patrol.

He further testified as follows: He parked the Camaro two or three blocks from the Bel Air Motel, intending to abandon it, with the keys left in the ignition switch. Klaess demanded that instead of returning to their motel room they find some more cocaine. Appellant refused, and Klaess drove off in the Camaro while he returned to the motel on foot. When he awoke next morning about 7:30, he saw Klaess in the motel room. There was mud and a pair of dirty pants in the bathroom. Klaess acted nervous and said that appellant would have to say she was with him all night.

When asked why, she said she had been “with some people,” and added, “I can’t tell you, they’ll kill me.” Appellant admitted that the temporary driver’s license found at the scene of the crime was the one he had obtained in Vallejo on December 21. He asserted, however, that because he had no wallet, the license was kept in Klaess’s purse. He said that when he found Klaess in the motel room on awakening the next morning, that purse, as well as a coat and sweater she had worn the day before, were missing. Appellant denied wearing “Lee” brand pants on the trip from Crockett.

He said he had one pair of such pants and had put them in the dirty clothes bag several days earlier. He could not explain the blood on them. He also denied wearing his Famolare shoes (consistent with footprints found at the crime scene) on that day. Appellant also denied making statements threatening the police or expressing hostility toward police. He denied the presence of any shotgun in the car during the Sacramento traffic stop at which a prosecution witness said he had reached for a shotgun in the back seat. He freely admitted other details of the stop.

Militating against the credibility of Klaess was evidence that her testimony was being given under a plea bargain with the district attorney. In exchange for her testifying truthfully against appellant and pleading guilty to being an accessory after the fact to the murders (§ 32), thus exposing herself to a maximum prison sentence of three years (§§ 18, 33), she was given immunity from prosecution not only for the murders themselves but also for all crimes preceding the murders.

Moreover, while in jail after her arrest and before deciding to give information against appellant to the authorities, she received a misdirected letter, written by appellant but addressed to another woman with whom appellant was romantically involved. She reacted with anger and jealousy and with a disinclination to “stick up for him” any further. Klaess admittedly hated police officers and had expressed those feelings to appellant, though he never heard her threaten to kill them. She was acquainted with one Robert Sanchez, who at the time of the killings had acquired a white Ford Galaxy.

A number of motorists testified, both for the defense and in prosecution rebuttal, concerning their observations of a California Highway Patrol car parked alongside the freeway at the time and place of the killings. One such witness said that a light-colored car that could have been a Ford Galaxy was parked near the patrol car; two others said they had seen what might have been a light-colored Ford Fairlane; still another claimed to have seen a white Nova.

Those four witnesses were outnumbered, however, by others who testified that the patrol car was accompanied by various vehicles of entirely different descriptions. C. Death Qualification as Depriving Appellant of Representative Cross-section of Community On voir dire, at least one prospective juror was excused for cause because of his inability to vote to impose the death penalty under any circumstances. Appellant argues that elimination of such a juror deprived him of his right to a jury representative of a cross-section of the community. We have consistently rejected similar contentions. (E.g., People v.

Chavez (1985) 39 Cal.3d 823, 827 [218 Cal.Rptr. 49, 705 P.2d 372]; People v. Anderson (1985) 38 Cal.3d 58, 60 [210 Cal.Rptr. 777, 694 P.2d 1149]; People v. Holt (1984) 37 Cal.3d 436, 449 [208 Cal.Rptr. 547, 690 P.2d 1207]; People v. Zimmerman (1984) 36 Cal.3d 154, 160-161 [202 Cal.Rptr. 826, 680 P.2d 776]; People v. Fields (1983) 35 Cal.3d 329, 353, 374 [197 Cal.Rptr. 803, 673 P.2d 680], cert. den. (1984) 469 U.S. 892 [83 L.Ed.2d 204, 105 S.Ct. 267].) For federal purposes, the United States Supreme Court recently resolved the issue against appellant. (Lockhart v.

McCree (1986) 476 U.S. —, — [90 L.Ed.2d 137, 148-150, 106 S.Ct. 1758].) We see no reason to reexamine it in the present case. D. Cross-examination About Drug Use and Psychiatric Treatment Appellant contends he was deprived of his right to cross-examination by the court’s refusal to allow his counsel to interrogate Klaess concerning her history of drug use and psychiatric treatment. Klaess was born September 30, 1960.

At appellant’s preliminary hearing she testified as follows: She first used PCP, or angel dust, when she was about 14 and last used it at age 15 when she had “a really bad experience with it.” She was hospitalized three times, for overdoses of PCP, at “a private hospital for teenagers with drug problems and running away problems.” She denied experiencing any further effects of PCP, though her doctor told her “it could possibly come back sometime.” She saw a psychiatrist during her involvement with PCP at age 15.

At age 14 she was taken twice to another psychiatrist who talked to her about her running away from home. In Orange County Juvenile Hall, she was counseled by a family psychologist to improve understanding between her and her family. When she first met appellant, in early 1978, she used some “crystal meth,” or “speed,” while traveling from Sacramento to Southern California and had the illusion that they were moving at a time when they were actually stopped. At trial, appellant sought to elicit the same testimony of Klaess’s “psychiatric history” as had been introduced at the preliminary hearing.

The trial court refused to allow such cross-examination, ruling that it was not relevant. Appellant claims the ruling was reversible error. He points out that “[cjross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude.” (Curry v. Superior Court (1970) 2 Cal.3d 707, 715 [87 Cal.Rptr. 361, 470 P.2d 345].) He relies in particular on People v.

Newton (1966) 244 Cal.App.2d 82 [52 Cal.Rptr. 727], where one of two grounds for reversal was the cutting off of the defendant’s cross-examination of the prosecuting witness concerning her consultations with a psychiatrist. The witness there had admitted one or two consultations two years before trial, and the cross-examination was intended to establish consultations for emotional problems at a later date. Here, however, appellant sought only to elicit the testimony that Klaess had given at the preliminary hearing concerning her experience with drugs and psychiatric consultations.

Her only experience, shown by that testimony, with long-range effects of drugs (as distinct from effects immediately after use) was in connection with her hospitalization for use of PCP at age 15. She had seen a psychiatrist at that time in connection with her PCP problems and had had psychiatric counseling at ages 14 and 15 concerning her relations with her family. That evidence did not have sufficient bearing upon the credibility of her testimony at the trial, when she was 20, to make its exclusion an abuse of discretion under Evidence Code

section 352. E. Cross-examination About Specific Crimes Covered by Immunity Agreement Klaess testified on direct and cross-examination that under her plea bargain she was granted immunity from prosecution for all crimes allegedly committed in California up to December 22, 1978, in exchange for her truthful testimony and her plea of guilty to being an accessory after the fact of murder. She testified that the immunity covered not only the murders themselves but also the three robberies and two car thefts in which she had participated along with appellant, as described in her testimony.

Outside the presence of the jury, defense counsel stated he intended to ask Klaess whether she understood the immunity specifically applied to two additional robberies (naming the victims) in Sacramento in 1978 and asked that the district attorney instruct Klaess not to volunteer any details of those robberies beyond the scope of the questions asked. The district attorney stated that appellant had been involved with Klaess in both those robberies and that he would be willing to tell Klaess not to volunteer details.

The court pointed out that because Klaess had testified that she and appellant lived together intermittently throughout 1978, the jury might infer that appellant was involved in those robberies even without testimony to that effect. The court ruled that the question about the two robberies would be disallowed under Evidence Code

section 352 as prejudicial to both sides. The ruling was thereafter broadened to cover any inquiry into additional specific crimes that would be covered by the immunity agreement. An accused is entitled to explore on cross-examination of a prosecuting witness the inducements from the prosecution that may have motivated testimony. (Davis v. Alaska (1974) 415 U.S. 308, 315-318 [39 L.Ed.2d 347, 353-355, 94 S.Ct. 1105]; People v. Duran (1976) 16 Cal.3d 282, 294 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1]; People v.

Winston (1956) 46 Cal.2d 151, 157 [293 P.2d 40].) In attacking the present ruling, appellant relies principally on People v. Allen (1978) 77 Cal.App.3d 924 [144 Cal.Rptr. 6], where defendant was charged with committing a robbery in concert with a minor, who was the chief prosecution witness. Defendant in Allen was permitted to show that charges against the minor arising out of that robbery were still pending but was refused permission to cross-examine either the minor or his mother concerning pending charges against the minor of two other robberies.

That refusal was held to be reversible error because “[t]he minor could have reasonably believed his punishment would have been greater for the three charges than for the one,” and the defendant “had the right to show that both the minor and his mother were possibly under greater prosecution pressure because of three recent robbery charges than only one.” (P. 933.) Here the jury knew that in exchange for her testimony Klaess was escaping prosecution at least for two murders (other than as accessory after the fact), three robberies (two of which involved kidnappings), and two car thefts.

Evidence that she was chargeable with, and being immunized for, two more robberies would not have added significantly to the already formidable attack on her credibility and would have risked imputing additional prior crimes to appellant. There is no indication from the extensive colloquy in the record that appellant was prepared to prove additional prior crimes for which Klaess was being immunized, apart from the two alleged Sacramento robberies.

Appellant argues that the potential prejudice to him was irrelevant in assessing the admissibility of evidence offered by his counsel, since it was counsel’s prerogative to weigh tactical risks to the defense. But defense counsel also stated to the court that if appellant’s connection with the two additional robberies were to come out inadvertently, as through a nonresponsive answer, he might move for a mistrial. The court could weigh that possibility in exercising its discretion under Evidence Code

section 352. F. Postagreement Prosecution Assistance to Witness Not only agreed immunity from prosecution but also other favors or assistance provided a witness by the prosecutor are generally relevant to a prosecuting witness’s credibility. (Duran, supra, 16 Cal.3d at pp. 293-294.) Here the trial court stated it would permit cross-examination of Klaess concerning any assistance by the prosecution in her dealings with law enforcement authorities after the immunity agreement was entered into.

When asked whether the prosecutor had intervened on her behalf in any problem she had with law enforcement authorities after her plea and release pursuant to the agreement, she answered, “No.” Defense counsel then attempted to impeach her on the basis of a Los Angeles newspaper

article reporting that Klaess had been taken into custody by police in Washington, D.C., and quoting her as saying that the prosecutor in the present case “told them that he did not want me booked.” The court excluded any further cross-examination on the subject under Evidence Code

section 352. The ruling was unduly restrictive. But “[prejudice [from undue restriction of cross-examination] ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them.” (Alford v. United States (1931) 282 U.S. 687, 692 [75 L.Ed. 624, 628, 51 S.Ct. 218]; see Van Arsdall, supra.) Klaess’s testimony had already been placed in its proper “setting” by a thorough examination of her motives for cooperating with the prosecution.

For the purpose of enabling the jury to assess Klaess’s credibility, evidence of the Washington, D.C., incident could have added little to this “environmental background.” (See People v. Mardian (1975) 47 Cal.App.3d 16, 40-41 [121 Cal.Rptr. 269].) G. Sanchez Statement to Social Worker re .22 Caliber Handgun Found at Scene Appellant called Sylvia Fernandez Boyle, an unlicensed clinical social worker. While employed at the University of California at Davis Community Health Center, Boyle had counseled Robert Sanchez concerning marital problems in late 1978 or early 1979.

Defense counsel offered to prove, through Boyle, that during a counseling session Sanchez stated that the gun found at the scene of the highway patrol killings came from him and that he was fearful of being considered a suspect in the case. The court excluded the statement as privileged (Evid. Code, § 1014) and as remote and prejudicial (id., § 352). We conclude that even if Sanchez’s statement to Boyle was technically admissible, any error in excluding it was harmless.

Sanchez had testified earlier that he had never before seen the .22 caliber handgun found at the crime scene (exhibit 6), and he had denied ever giving, selling, loaning, or transferring any handgun to appellant or Klaess before the highway patrol killings. On direct examination, Klaess testified that the gun used by appellant in the first robbery in which she acknowledged participating with him had been purchased by appellant from a stranger who offered it for sale outside Torey’s restaurant, next door to the Bel Air Motel in West Sacramento.

She also testified, however, that while she and appellant were staying with Sanchez and Mrs. Sanchez during the week or two before Klaess and appellant moved into the Bel Air Motel, appellant acquired a gun similar to exhibit 6 from Sanchez. She admitted that during a pretrial interview she had stated that exhibit 6 came from Sanchez, but her trial testimony vacillated between statements that appellant had acquired exhibit 6 from the man at Torey’s and statements that she did not know whether appellant had acquired it from that man or from Sanchez.

In light of Klaess’s testimony, the likely effect of admitting Sanchez’s statement to Boyle would have been only to indicate to the jury that appellant had acquired the gun from Sanchez, then left it at the scene of the crime. The offer of proof was that Sanchez said the gun “came from” him, not that he said it was his. Appellant argues that the offered statement would have impeached Sanchez’s denial of any connection with the gun and permitted the jury to infer a consciousness of guilt on his part.

Here, however, the far more likely inference from Sanchez’s statement to Boyle would be not that he was conscious of any guilty connection with the crime but only that he was fearful of becoming a suspect because the gun that appellant left at the crime scene had been acquired by him from Sanchez. We see no reasonable possibility that admission of Sanchez’s statement would have focused the jury’s suspicion toward him. Nor was appellant injured by loss of an opportunity to impeach Klaess’s credibility. Her testimony regarding the origin of exhibit 6 was confusing and contradictory on its face.

Nevertheless, she specifically acknowledged (1) that appellant had acquired a handgun “similar” to exhibit 6 from Sanchez, (2) that exhibit 6 itself might have come from Sanchez, and (3) that she had definitely linked Sanchez to exhibit 6 in a pretrial interview. The jury thus had ample opportunity to assess Klaess’s believability on this issue and to draw its own inferences about the origin and identity of exhibit 6. Sanchez’s own statement would have given little further assistance. We find no reversible prejudice in the trial court’s ruling. H.

Exclusion of Tape Recording Offered to Impeach Klaess on Source of Appellant’s Gun As already noted, Klaess testified that during the month or so before the crime, appellant acquired a .22 handgun from a stranger at Torey’s restaurant and also acquired such a gun from Sanchez. She stated at some points in her testimony that the gun at the crime scene (exhibit 6) was the one acquired at Torey’s and at other points that she did not know whether the man at Torey’s or Sanchez was appellant’s source of exhibit 6.

She was confronted during her testimony with the transcript of her pretrial interview with the prosecutor, and in particular with a statement in that transcript that the source of exhibit 6 was Sanchez. Defense counsel offered the original tape recording of that interview to show Klaess’s “demeanor” in making the statements concerning the gun. Counsel asserted that the recording would demonstrate that her voice was forthright and spontaneous in stating that the gun was acquired from Sanchez but slow, equivocal, and evasive in stating that it came from the man at Torey’s.

The trial court ruled that the sound of Klaess’s voice on the tape, “her pauses, her hems and haws,” were irrelevant to her state of mind and so ruled the tape inadmissible. Appellant invokes the best evidence rule (Evid. Code, § 1500), but that objection is unavailable since there is no claim that the transcript is inaccurate. (People v. Fujita (1974) 43 Cal.App.3d 454, 473 [117 Cal.Rptr. 757].) Without assessing the theoretical soundness of the stated reason for the court’s ruling, we are satisfied that exclusion of the tape was not prejudicial.

The transcript itself reflected much of Klaess’s hesitancy and indecision in speaking on the source of the gun, and defense counsel challenged her at length with her inconsistent statements in the transcript. The jury was thus able to observe her demeanor in dealing with the subject on the stand. Finally, as noted in connection with the exclusion of the Sanchez statement to the clinical social worker, Boyle, it was relatively unimportant to the issues before the jury whether appellant had obtained the gun from Sanchez or from the man at Torey’s.

Klaess’s testimony was clear that regardless of the source of the gun, it was appellant himself who had last had it in his possession before the crime. I. Exclusion of Evidence of Klaess’s Drug Connections On redirect examination, appellant was asked whether Klaess knew, or said she knew, persons in the Sacramento area from whom she could obtain drugs. The prosecutor’s objections to both questions were sustained.

The bench conference on the ruling is not reported, but according to a stipulation and order for settlement of the record, the stated ground for exclusion was that “such questioning would elicit evidence of criminal activity on the part of Klaess already held inadmissible by prior rulings of the court.” At the time of those prior rulings, however, appellant had not yet presented his theory that Klaess had committed, or been involved in, the charged crimes without his participation.

He testified that he and Klaess drove from Crockett to West Sacramento between 1:30 and 2:30 a.m. on December 22 without encountering the highway patrol, and that when he parked the Camaro at the end of that trip, Klaess said she wanted more cocaine and drove off alone in the Camaro. He also testified that his temporary driver’s license, later found at the crime scene, was then in Klaess’s purse, and that when he saw her on awaking at the motel at 7:30 a.m., she refused to say where she had been and demanded that appellant say they had been together all night.

In light of appellant’s testimony, evidence that Klaess had drug connections in Sacramento would have been relevant to corroborate his statement that she had left for the purpose of obtaining more cocaine by showing that she had the means and opportunity to do so. There was no danger of undue prejudice since Klaess had already admitted to drug abuse and to commission of robberies and other crimes. We conclude, however, that the court’s erroneous exclusion of that evidence is not ground for reversal.

Klaess testified to living with several people in Sacramento at various times in October and November of 1978, while she was separated from appellant. She was an admitted cocaine user and it was uncontradicted that she had used cocaine the evening before the crimes in Crockett as well as on the next day in Sacramento. There was a conflict of testimony as to whether appellant and Klaess possessed cocaine when they returned to West Sacramento: appellant testified that all the cocaine he purchased in Crockett was used up there, while Klaess and Engel said he took some of it with him when he left.

A finding that appellant still had some cocaine when he and Klaess arrived in West Sacramento would tend to discredit his claim that Klaess left him to forage for more cocaine. But in light of the evidence of Klaess’s background, it appears most unlikely that the jury would have rejected that claim simply on the theory that she did not know where or how to obtain the cocaine in Sacramento. Accordingly, we find no reasonable probability that admission of the evidence would have led to a result more favorable to appellant and conclude that exclusion of the evidence is not ground for reversal. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) J. Exclusion of Reasons for Klaess’s Hatred of Police Klaess admitted that she hated police. The trial court twice ruled that her reasons for such hatred were irrelevant, despite defense counsel’s claim that evidence of those reasons would tend to show a motive for her participation in the charged murders and impeach her testimony that she sat passively in the Camaro after she and appellant were stopped by the highway patrol officers. Appellant challenges those rulings as error.

Despite the rulings, Klaess testified without objection on cross-examination that she hated police because she “had been arrested a lot of times[,] . . . had a chip on [her] shoulder from getting into trouble[, and] . . . just didn’t like getting thrown in jail.” She said her experience with the Richmond police in November 1978 when she “got maced” intensified her hatred of police.

When asked if she wanted to hurt police officers if the opportunity should arise, she replied, “No, I just wanted to be left alone by them.” Later appellant testified to hearing Klaess repeatedly express her feelings against police, though he said he never heard her threaten to kill them. The only subjects on which defense counsel was precluded from cross-examining Klaess as a result of the rulings were (1) the details of Klaess’s experience with the Richmond police in the incident alluded to and (2) an arrest in Sacramento. Both incidents involved appellant as well as Klaess.

Appellant later testified without objection that on both occasions she was loud and insulting toward the police and that in the Richmond incident she complained, “It’s hurting, it’s hurting,” when the police pulled her handcuffs upward behind her back. Not only the admissions of her hatred of police but also the evidence of her crime spree with appellant during the 48 hours preceding the highway patrol killings amply established her reasons for animosity toward police.

The trial court could properly conclude that the confusion of issues that would result from introducing the excluded evidence of her confrontations with police would outweigh the evidence’s probative value. (Evid. Code, § 352.) K. Evidence of Appellant’s Statements of Hatred of Police and Threats to Kill Police Over objection the trial court admitted testimony of several prosecution witnesses that at various times in 1978 they had heard appellant express contempt and hatred for police and declare that he would kill any officer who attempted to arrest him.

The witnesses included persons whom appellant and Klaess had known as friends and neighbors, or as apartment mates, in Southern California, appellant’s jail cellmate in Sacramento in November 1978, and the woman companion who stated she had not only heard appellant’s threats but physically stopped him from reaching for a shotgun when an officer stopped their car while appellant was driving. Appellant now contends it was reversible error to admit this testimony, relying on Evidence Code sections 1101 and 352. In relying on Evidence Code

section 1101, appellant assumes that the statements in question constituted “conduct” and that they were introduced to prove his “disposition” to commit the crimes rather than to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” (Evid. Code, § 1101, subd. (b)). A defendant’s threat against the victim, however, is relevant to prove intent in a prosecution for murder. (People v.

Lew (1968) 68 Cal.2d 774, 778 [69 Cal.Rptr. 102, 441 P.2d 942].) The statements here in question did not specify a victim or victims but were aimed at any police officer who would attempt to arrest appellant. Such a generic threat is admissible to show the defendant’s homicidal intent where other evidence brings the actual victim within the scope of the threat. (People v. Merkouris (1956) 46 Cal.2d 540, 557 [297 P.2d 999]; People v. Wilt (1916) 173 Cal. 477, 481-483 [160 P. 561]; People v. Craig (1896) 111 Cal. 460, 466 [44 P. 186]; People v.

Manson (1976) 61 Cal.App.3d 102, 140-141 [132 Cal.Rptr. 265]; 1A Wig-more, Evidence (Tillers ed. 1983) § 106; 1 Wharton, Criminal Evidence (13th ed. 1972) § 203.) Hence the statements were relevant and not ex-cludable under Evidence Code

section 1101. Appellant contends that the threats should have been excluded under Evidence Code

section 352 as cumulative to the evidence of the robberies, kidnappings, and other crimes committed by appellant, together with Klaess, on December 20 and 21. Those crimes, however, tended to prove a different aspect of appellant’s state of mind.

Whereas the threat, repeated over a period of several months preceding the charged murders, tended to show a design or intent to kill members of a class of persons under certain circumstances, the crimes, committed less than 48 hours before the murders, tended to show a motive for killing the officers, i.e., a natural desire to escape the severe punishment that could be anticipated if defendant were arrested. The prior crimes were admissible for the latter purpose. (People v. Durham (1969) 70 Cal.2d 171, 186-189 [74 Cal.Rptr. 262, 449 P.2d 198]; see People v.

Thompson (1980) 27 Cal.3d 303, 319, fn. 23 [165 Cal.Rptr. 289, 611 P.2d 883].) Appellant contends that because his defense was his absence from the time and place of the crimes, he did not challenge the proof of homicidal intent and premeditation, based on the evidence found at the scene, e.g., that Officer Freeman was shot five times and Officer Blecher was shot while handcuffed. Appellant argues that consequently, “[t]he only real issue during the guilt phase was identity,” and therefore the evidence of his prior conduct offered to prove homicidal intent and premeditation should have been excluded.

There are two answers to that contention. First, appellant’s alibi defense was not revealed until after the close of the prosecution’s case. The amended information charged the willful murder, with malice aforethought and with premeditation and deliberation, of each of the victims.

The prosecution had the burden of proving those elements before the close of its case in chief. (§ 1118.1.) Second, the prosecution was not required to assume that the jury would find premeditation and deliberation simply on the basis of the circumstances of the killings inferable from the testimony of Klaess and the evidence found at the scene. Evidence of premeditation and deliberation typically shows not only the manner of killing, but also “planning” activity and “motive.” (People v.

Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942].) The evidence of appellant’s prior threats and crimes furnished proof of planning and motive that did not duplicate the evidence of what happened at the scene. L.

Accomplice Status as Question of Fact; Sufficiency of Instructions The jury was instructed to determine whether or not Klaess, the principal prosecution witness, was an accomplice (CALJIC No. 3.19) and told that if they made such a finding, her testimony should be viewed with distrust (CALJIC No. 3.18) and would have to be corroborated by evidence tending to connect appellant with commission of the offense charged (CALJIC No. 3.12). The instructions correctly stated the consequences of accomplice status. (§ 1111; People v.

Gordon (1973) 10 Cal.3d 460, 466, fn. 3 [110 Cal.Rptr. 906, 516 P.2d 298].) The trial court denied, however, appellant’s request to remove determination of that status from the jury by instructing that Klaess was an accomplice as a matter of law (CALJIC No. 3.16). Appellant now claims that denial as reversible error. An accomplice is defined as “one who is liable to prosecution for the identical offense charged against the defendant on trial” (§ 1111), and the jury was so instructed (CALJIC No. 3.10).

The parties differ, however on the effect of that definition on establishing accomplice status as a matter of law. The Attorney General’s position appears to be that Klaess should have been deemed an accomplice as a matter of law only if the evidence of her participation in the murders was “so exclusively onesided and undisputed” that if she were charged with the murders along with defendant, a jury could not reasonably acquit her.

Appellant, on the other hand, contends that because an accomplice need only be “liable to prosecution” (§ 1111), Klaess was an accomplice as a matter of law if the record discloses “probable cause” for her prosecution, i.e., evidence that if believed would support her conviction as principal. It is well settled that the phrase “liable to prosecution” in

section 1111 means, in effect, properly liable. Any issues of fact determinative of the witness’s factual guilt of the offense must be submitted to the jury. Only when such facts are clear and undisputed may the court determine that the witness is or is not an accomplice as a matter of law. (People v. Easley (1983) 34 Cal.3d 858, 874 [196 Cal.Rptr. 309, 671 P.2d 813]; People v. Tewksbury (1976) 15 Cal.3d 953, 960 [127 Cal.Rptr. 135, 544 P.2d 1335]; People v.

Hoover (1974) 12 Cal.3d 875, 880 [117 Cal.Rptr. 672, 528 P.2d 760].) The decisions stating that “[o]ne is ‘liable to prosecution’ for an offense if it has been committed and there is ‘probable cause’ to believe he has committed it” (People v. Dailey (1960) 179 Cal.App.2d 482, 485 [3 Cal.Rptr. 852], citing People v. Cowan (1940) 38 Cal.App.2d 231, 242 [101 P.2d 125]) are not inconsistent with these principles.

In Dailey accomplice status was established by uncontradicted facts (179 Cal.App.2d at pp. 485-486), while in Cowan the uncontradicted evidence showed that the witness was not an accomplice (38 Cal.App.2d at pp. 240, 240-242). The accomplice rule is intended to alleviate distortion stemming from consciousness of guilt, not from fear of unjust prosecution. Self-exculpatory testimony is certainly false if the witness is in fact guilty, but much less likely untruthful if the witness is innocent though falsely accused.

And testimony by one not actually guilty is less prone to be “‘tainted .. . [or] given in the hope or expectation of leniency or immunity.’ [Citations.]” (Tewksbury, supra, 15 Cal.3d at p. 967; see People v.

Howell (1924) 69 Cal.App. 239 [230 P. 991].) Appellant contends that Klaess’s accomplice status was established as a matter of law by her testimony that appellant had expressed an intention to kill police officers if necessary to avoid arrest and imprisonment; that she thereafter willingly participated with appellant in armed robberies, kidnappings, and auto thefts during the two days preceding the killing of Officers Freeman and Blecher; that she hated police and was more concerned for herself and appellant than for the wounded officer she observed from the Camaro window; and that she assisted appellant in escaping from the crime scene and disposing of evidence.

Appellant claims that these facts are indistinguishable from those held sufficient to sustain a first degree murder conviction in People v. Durham, supra, 70 Cal.2d 171. In Durham, Los Angeles police officers stopped a stolen Thunderbird at 4 a.m. Durham was driving the Thunderbird and Robinson was the passenger. Durham got out and talked with the officers. Robinson was ordered out and, on emerging, pulled a handgun. In the ensuing exchange of gunfire, one officer was fatally wounded and Robinson was hit. The other officer then turned his attention to Durham and ordered him not to move.

Durham obeyed, except that at one point he started to lower his hands, was told to keep them raised, and did so. At the time, Durham and Robinson were both felony parole violators from Ohio; they had committed armed robberies in Ohio and Nebraska within the preceding 11 days; and Robinson had fired his gun during the escape from the second robbery. The Thunderbird had been stolen in San Francisco.

This court concluded that from the foregoing evidence the jury could reasonably infer that Durham and Robinson had been engaged in a joint expedition to commit robberies and forcibly resist arrest, and that at the time of the traffic stop in Los Angeles, Durham knew he was driving a stolen vehicle, and knew that Robinson had used his gun in the prior robberies and was then armed. It was held that with these inferences the evidence was sufficient to sustain Durham’s conviction for first degree murder as an aider and abettor under the following principles quoted from People v.

Villa (1957) 156 Cal.App.2d 128, 133-134 [318 P.2d 828]: “‘To be an abettor the accused must have instigated or advised the commission of the crime or been present for the purpose of assisting in its commission.

He must share the criminal intent with which the crime was committed. . . . [W]hile mere presence alone at the scene of the crime is not sufficient to make the accused a participant, and while he is not necessarily guilty if he does not attempt to prevent the crime through fear, such factors may be circumstances that can be considered by the jury with the other evidence in passing on his guilt or innocence.

One may aid or abet in the commission of a crime without having previously entered into a conspiracy to commit it. [Citations.] Moreover, the aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.

Whether the act committed was the natural and probable consequence of the act encouraged and the extent of defendant’s knowledge are questions of fact for the jury. [Citations.]’ (Italics added.)” (Durham, supra, 70 Cal.2d at p. 181; but cf., People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318].) It does not follow from Durham that Klaess was an accomplice as a matter of law. Though appellant had declared he would kill police if necessary to escape arrest, Klaess testified she did not take those statements seriously.

She admittedly hated police herself, but appellant testified he had never heard her threaten to kill them. Thus the jury was not required to infer that she shared with appellant an intent to resist arrest at the risk of killing the arresting officers. Nor did her mere presence and inaction at the crime scene (People v. Strickland (1974) 11 Cal.3d 946, 958 [114 Cal.Rptr. 632, 523 P.2d 672]; Pinell v.

Superior Court (1965) 232 Cal.App.2d 284, 287 [42 Cal.Rptr. 676]) or assistance in defendant’s escape (Hoover, supra, 12 Cal.3d at p. 879) establish conclusively that she was liable as a principal and was thus an accomplice. Appellant complains, however, that there were gaps in the jury instructions on accomplice status that prevented the jury from making a proper finding that Klaess was an accomplice.

Specifically, appellant contends that the trial court on its own motion should have instructed on “the principles of vicarious liability’’ as stated in the final (optional) paragraph of CALJIC No. 3.00: “One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.” Appellant also cites CALJIC No. 6.11, which states that a conspirator is responsible for

an act of a fellow conspirator that is a natural and probable consequence of the object of the conspiracy. The only purpose advanced by appellant for giving such an instruction would be to provide a legal basis for a conclusion by the jury that Klaess was an accomplice under a Durham theory, i.e., that a natural and reasonable, or probable, consequence of her riding with appellant from Crockett to West Sacramento in the stolen Camaro was that appellant would resist with deadly force if stopped by law enforcement officers.

That theory could apply only if the jury found that appellant was present at the time and place of the crime and personally fired a gun at the officers. Those findings, however, would undercut the benefits to appellant from labeling Klaess an accomplice. Thus, the findings would render pointless any corroboration tending to connect appellant with commission of the crimes (§ 1111) and would eliminate any doubt of the truth of Klaess’s testimony that appellant personally shot at the officers.

Moreover, the proposed instruction would be superfluous if the jury concluded that Klaess had personally participated in the shooting since she would then be an aider and abettor under CALJIC No. 3.10, through which the jury was told that “[t]o be an accomplice, the person must have aided, promoted, encouraged, or instigated by act or advice the commission of such offense with knowledge of the unlawful purpose of the person who committed the offense.” Thus, the only way the jury could have (1) found accomplice status under the proposed instruction on responsibility for natural and probable consequences of any act knowingly aided or encouraged and (2) not found accomplice status under the instructions that actually were given, would have been to conclude that appellant personally shot and killed the officers as charged.

Accordingly, the absence of the proposed instruction could not have substantially prejudiced him. M. Refusal of Instructions on Manslaughter Based on Diminished Capacity Defense counsel asked the court to instruct the jury on voluntary and involuntary manslaughter as lesser included offenses based on diminished capacity, as a result of intoxication, to form the mental states requisite to murder. The request was correctly rejected as lacking support in the evidence.

Appellant testified that in the early evening of December 21, he and Klaess purchased a half pint of brandy in Sausalito just before their kidnap-robbery of the woman victim. (That robbery was reported to the police at 9:25 p.m.) He further testified as follows: He and Klaess consumed all the brandy, sharing it equally. In Richmond, they bought a pint of 151 proof rum and some Coca Cola, from which appellant had one mixed drink at the home of their friend in San Pablo and one more mixed drink at Engel’s home in Crockett. He also had about three “lines” of cocaine in Crockett.

On leaving Crockett he was “under the influence” of the alcohol and cocaine and “feeling all right” but not “drunk or overly drunk or high on cocaine.” Klaess’s testimony was not materially different. She said that of the brandy, she “might have had one or two drinks” and that appellant “had most of it.” She said that in addition to the pint of rum, they bought a half pint, all of which she drank. She testified, similarly to appellant, that they each had one drink in San Pablo.

She said that in Crockett, she, appellant, Engel, and Engel’s boyfriend drank from the pint bottle of rum, and a quarter of the bottle remained unconsumed when she and appellant departed. As for cocaine, Klaess testified that appellant had “a lot,” eight lines. She said he was “under the influence” when they left Crockett, in that he was “talkative and really hyper.” This testimony lent only minimal and insubstantial support to appellant’s theory of diminished capacity from intoxication and therefore was not sufficient to justify the requested instruction. (People v.

Flannel (1979) 25 Cal.3d 668, 684-685 [160 Cal.Rptr. 84, 603 P.2d 1].) As in Flannel, appellant had consumed relatively small amounts of alcohol over a period of several hours before commission of the crimes. Although there was testimony that he was “under the influence” of alcohol and cocaine, there was no evidence that his faculties were affected sufficiently to interfere with his capacity to form the mental states requisite to murder. As to the effects of the cocaine, Klaess testified that from her experience cocaine is an “upper” and alcohol a “downer” and that they offset each other to some degree.

There was no evidence that appellant had incoherent speech, or was driving erratically, during the early morning hours of December 22, and he claimed no unusual difficulty in recalling events during those hours. The request for the instructions was properly denied. (People v. Harris (1981) 28 Cal.3d 935, 958-959 [171 Cal.Rptr. 679, 623 P.2d 240].) N. Claimed Errors Arising Out of Jury’s Guilt Phase Deliberations 1.

Factual Background Appellant makes three claims of error pertaining to the jury’s deliberations at the guilt phase: (1) that the trial court commented on the evidence after deliberations had commenced; (2) that the comments contained errors prejudicial to appellant; and (3) that appellant’s motions for mistrial were denied despite indications that the jury was deadlocked. The following facts relate to all three claims. On January 23, 1981, the 56th day of trial, the jury commenced deliberations. It had heard about 40 days of testimony from 124 witnesses, and about 250 exhibits had been placed in evidence.

During the first six days of deliberations, the jury requested and heard the reading of all or parts of the testimony of ten witnesses. Some of that testimony pertained to the timing of appellant’s arrival at Engel’s home in Crockett, of his visit to the bar in Crockett, and of his departure, with Klaess, for West Sacramento in the early morning hours of December 22. One of the items read was the entire testimony of Wanda Hawthorne, who, it will be recalled, had testified to seeing a brown Camaro with driver and one passenger, beginning about 2 a.m., driving eastbound on Interstate 80 between Vacaville and Davis.

On the sixth day, February 2, a juror was excused for illness and replaced by an alternate. The jury was instructed to begin deliberations anew. The alternate had, however, heard the foregoing reading of testimony. Next day, February 3, the jury requested, and heard, additional testimony on the timing of appellant’s visits to Engel’s home and the bar in Crockett, and on February 4, it heard testimony concerning appellant’s activities in Sacramento the day after the highway patrol killings.

After deliberating all day on February 5, the jurors sent a note to the judge stating that they “cannot reach a unanimous verdict.” They were told to adjourn for the day and resume deliberations in the morning. The next day, they asked for and heard a repeat reading of the testimony of Wanda Hawthorne.

Later that afternoon, the jury sent two notes to the judge, stating that its members “cannot agree unanimously” and that the “impasse” had “been verbally expressed as final.” The court denied a defense motion for mistrial and told the jury to return Monday morning, February 9, when he would give further instructions. On February 9, the jury initially asked for time for a final effort to resolve the impasse, but an hour later said it was ready for instructions. Court and counsel then discussed the prosecutor’s proposal for a supplemental charge commenting on the evidence, which the defense opposed.

Meanwhile, that afternoon, the court ascertained that the jury was still deadlocked but denied a further motion for mistrial. Next morning, February 10, the court orally delivered to the jury the supplemental charge to which defendant now objects, principally with respect to its comments on the Hawthorne testimony. Next day, February 11, the jury requested and, over defense objection, was given a written copy of that first supplemental charge. In the afternoon the jury again sent a note that it could not arrive at a decision, and a defense motion for mistrial was again denied.

On the next court day, February 13, the court gave, over defense objection, a second supplemental charge, repeating previous instructions on such matters as burden of proof, credibility of witnesses, and the duty of each juror to decide independently. Later that day, the jury sent a note stating: “Instructions regarding our requests for reading of testimony relative to time helped our deliberations considerably. The jury would now like to hear your instructions regarding the use of testimony of passersby who passed the crime scene in the early morning hours of 12-22-78.

Also, please give us instructions related to jurors using the ‘feelings’ and ‘beliefs’ to justify the credibility of Rodriguez and Klaess’s testimony. Please provide a written copy of instructions relative to the aforementioned.” In response, on the next court day, February 17, the court gave a third supplemental charge providing general guidance on jurors’ duties in assessing conflicting testimony.

Next day, February 18, the jury sent another note that it was “hopelessly deadlocked.” The court denied another motion for mistrial and, over defense objection, sent the jury a questionnaire asking the number of ballots taken since February 2, the numerical division on each ballot, and the date of the last ballot. The jury replied that it had taken five ballots between February 2 and February 11, and had been divided 11 to 1 on each ballot. The content of the votes was not revealed.

The defense again moved for a mistrial, contending that an order to resume deliberations would imply a direction to the minority juror to acquiesce in the majority’s views. The motion was denied. During deliberations on the next day, February 19, the jury sent another note requesting the testimony of defendant and another witness concerning a jacket which the prosecution contended, and defendant denied, that he had worn during the early morning of December 22. The requested testimony was read on the next day of deliberations, February 23.

There were requests for the reading of additional testimony on February 23 and 24; these were complied with. On February 25, the jury returned its guilt phase verdicts. 2. Claim of Error in Commenting on Evidence After Jury Announced It Was Deadlocked. Appellant’s initial contention is that the first supplemental charge was error simply because it was delivered after the jury announced it was deadlocked. He relies on a recent decision of this court, People v. Cook (1983) 33 Cal.3d 400 [189 Cal.Rptr. 159, 658 P.2d 86].

In Cook, the trial judge expressed his belief in the defendant’s guilt to a jury which claimed it had arrived at an impasse.

The majority, in an opinion authored by the Chief Justice, held that judicial comment on the ultimate issue of guilt or innocence is always improper. (Pp. 412-413.) But the “primary issue” addressed by the majority was the timing of the trial court’s remarks. “[Judicial] [cjomment [on the evidence] at a time when the jury is deadlocked,” said the majority, “is so likely to invade the jury’s province and control its verdict that such comment must be deemed erroneous.” (P. 413.) Justices Mosk, Broussard, and Spencer joined the Chief Justice’s opinion.

Justices Richardson, Kaus, and Reynoso concurred in the Cook result, accepting the premise that judicial comment on guilt or innocence should be avoided. However, these justices dissented from the majority’s proposition that a trial judge may offer no comment, on the evidence, however mild and “scrupulously fair” his remarks, once the jury has announced an impasse in deliberations. After careful reflection, we, like the Cook dissenters, are convinced that Cook's absolute prohibition of postdeadlock comment was ill-advised. We will therefore overrule that portion of Cook. We explain our reasons in detail.

The trial judge’s privilege not only to summarize the evidence, but to analyze it critically, is rooted in English common law. (See, e.g., Patton v. United States (1930) 281 U.S. 276, 288-289 [74 L.Ed. 854, 858-859, 50 S.Ct. 253]; Comment, Power to Comment on the Issue of Guilt: Trial by Jury or Trial by Judge (1964) 9 Vill. L.Rev. 440.) The power of comment “has been a constant source of disagreement among American legal authorities.” (Power to Comment etc., supra.) Indeed, for many years our state’s Constitution expressly forbade trial judges to analyze the facts for the jury.

Article VI, former

section 19, provided that “[j]udges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.” (Italics added.) In 1934, however, the Constitution was amended to restore the power of comment in broad terms. Under current

article VI,

section 10, “[t]he court may make such comment on the evidence ... as in its opinion is necessary for the proper determination of the cause." (Italics added.) The purpose of the 1934 amendment “was to abolish the prior limitations on the trial judge’s participation in the trial of a case with respect to comment on the evidence and the credibility of witnesses.” It sought to place “more power” in the judge’s hands “and [to] make him a real factor in the administration of justice . . ., [not] a mere referee or automaton as to the ascertainment of the facts. ...” (People v.

Ottey (1936) 5 Cal. 2d 714, 723 [56 P.2d 193]; see also People v. Brock (1967) 66 Cal.2d 645, 650 [58 Cal.Rptr. 321, 426 P.2d 889].) On its face, the constitutional language imposes no limitations on the content or timing of judicial commentary, deferring entirely to the trial judge’s sound discretion. The appellate courts have recognized, however, that this powerful judicial tool may sometimes invade the accused’s countervailing right to independent jury determination of the facts bearing on his guilt or innocence.

Hence, the decisions admonish that judicial comment on the evidence must be accurate, temperate, nonargumentative, and scrupulously fair. The trial court may not, in the guise of privileged comment, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate factfinding power. (E.g., Brock, supra, 66 Cal.2d at pp. 650-651; People v. Friend (1958) 50 Cal.2d 570, 577-578 [327 P.2d 97]; People v.

DeMoss (1935) 4 Cal.2d 469, All [50 P.2d 1031].) Pre-Cook California decisions had evaluated the propriety of judicial comment on a case-by-case basis, balancing defendants’ jury-trial rights against the broad right of comment expressly conferred by the Constitution. No case had suggested that, notwithstanding

article VI,

section 10, fair comment to a deadlocked jury was prohibited. Nonetheless, Cook reasoned that comments delivered after deliberations had begun are more likely to coerce a verdict than those given at the conclusion of the evidence (citing Cooper v. Superior Court (1961) 55 Cal.2d 291, 299-300 [10 Cal.Rptr. 842, 359 P.2d 274]), and that comments made to a jury which has announced its inability to reach a verdict “are even more apt to be controlling. Abiding by the trial court’s opinion will provide the deadlocked jury with an easy alternative to the arduous task of attempting to hammer out a unanimous decision.

It is too much to expect that jurors who have honest opinions different from that of the more experienced trial judge will be able to hold to their positions after the trial court explains its views to them. [Fn. omitted.]” (33 Cal.3d at p. 410.) Cook further declared that a rule prohibiting postdeadlock comment would promote policies like those underlying People v.

Gainer (1977) 19 Cal.3d 835 [139 Cal.Rptr. 861, 566 P.2d 997], which had disapproved the so-called “Allen charge.” The Allen charge encouraged minority jurors to consider the majority’s views and thus tended to coerce a subjugation of minority to majority opinion. “The coercive nature of . . . comments on the evidence to a deadlocked jury,” Cook declared, “is only slightly different.

The comments tend to compel the jurors to harmonize their views with those of the judge, rather than with those of the majority. [In each case,] [t]he accused is highly likely to be deprived of the right to have his guilt or innocence determined by the independent vote of each juror.” (33 Cal.3d at p. 411.) The principal mistake in this analysis, we conclude, is that it confuses a constitutionally endorsed form of assistance to jurors with prohibited coercion.

In effect, the Cook majority declared that the more effective the judge’s fair comments are likely to be, the more impermissibly coercive they must be found. Yet, under our Constitution, the right to independent jury determination of facts does not mean that a jury must be free of all judicial influence during its deliberations. The very purpose of the privilege of fair comment by the most influential person in the courtroom is to give jurors the benefit of his experience in evaluating evidence. If there were an absolute prohibition against useful judicial comment, the privilege would be meaningless.

And if this court thought that effective judicial comment violates the right to jury trial, we were obliged to say so sometime in the half century since the 1934 constitutional amendment. Of course, a judicial power expressly set forth in our state Constitution cannot violate jury-trial rights guaranteed by the same charter.

And it is established beyond doubt that the federal jury-trial right, which includes all essential features of the right “understood and applied at common law,” contemplates “the superintendence of a judge having power to instruct [the jurors] as to the law and advise them in respect of the facts. . . .” (Patton, supra, 281 U.S. at p. 288 [74 L.Ed. at p. 858] (italics added), see also Quercia v.

United States (1933) 289 U.S. 466, 469 [77 L.Ed. 1321, 1325, 53 S.Ct. 698].) Accordingly, we have made clear that the trial court has broad latitude in fair commentary, so long as it does not effectively control the verdict.

For example, it is settled that the court need not confine itself to neutral, bland, and colorless summaries, but may focus critically on particular evidence, expressing views about its persuasiveness. (Friend, supra, 50 Cal.2d at p. 577; DeMoss, supra, 4 Cal.2d at pp. 476-477.) As Justice Kaus noted in his Cook dissent, there is no reason to suppose that this privilege evaporates precisely at the moment when it may be most helpful—when the jury, by requesting aid or announcing impasse, has revealed it is having difficulties with which the court may be able to assist. (33 Cal.3d at p. 415.) There seems considerable merit in the further observation of Justice Kaus, an experienced trial judge, that “the difference in coercive effect between postdeadlock intervention and predeliberation comment is more apparent than real.

In most cases early comment—if it has any effect— simply avoids a deadlock from arising in the first place.” (Id., at p. 414.) Cook's analogy to Gainer also misses the mark. A principal flaw in the Allen charge at issue in Gainer was that, by counseling minority jurors to consider the majority view, whatever it might be, the instruction encouraged jurors to abandon a focus on the evidence as the basis of their verdict. By contrast, fair comment specifically urges a proper attention to the evidence and its value.

Moreover, the Allen charge, though buttressed by tradition, did not enjoy the express constitutional sanction conferred on the judicial privilege of fair comment. The setting of Cook well illustrates how extreme facts can produce dubious law. Cook was charged with threatening a witness. The prosecution’s case rested entirely on an evaluation of Cook’s credibility against that of the alleged victim and her 10-year-old daughter, who claimed she had overheard the threat.

After more than a day of deliberations, the jury announced deadlock but acknowledged it might be able to reach a verdict if it knew the judge’s views on the credibility of the prosecution witnesses. The court obliged, explaining at length why it believed they were telling the truth while Cook was lying, and that it therefore thought Cook guilty. After only 14 more minutes of deliberation, the jury returned a guilty verdict.

As Cook held—and we affirm—the trial court’s commentary would have been improper at any time, since it included the judge’s opinion of guilt. (33 Cal.3d at pp. 412-413.) Though offered as the principal basis for reversal of Cook’s conviction, the “deadlock” rule announced in his case was thus superfluous to the facts presented there. And Cook’s facts supply little justification for a blanket rule which entirely denies the constitutional privilege of comment once the jury has announced an impasse.

The Cook majority relied on an early federal decision which condemned comment “as to . . . guilt or innocence” to a deadlocked jury (Foster v. United States (4th Cir. 1911) 188 Fed. 305, 309), noting that this rule had been superseded by a “more far-reaching” federal doctrine prohibiting any comment on guilt except where the evidence is undisputed (United States v. Murdock (1933) 290 U.S. 389, 394 [78 L.Ed. 381, 385, 54 S.Ct. 223]). (33 Cal.3d at p. 410, and fn. 10.) Neither federal decision suggests that milder comment is forbidden at any stage.

The majority in Cook also emphasized two California Court of Appeal cases, People v. Moore, supra, 40 Cal.App.3d 56, and People v. Flores, supra, 17 Cal.App.3d 579. In each, the trial judge recalled the jury after deliberations had begun and provided extensive commentary. In one instance, the court misstated and distorted the evidence; in the other, he based his opinion of guilt on disbelief of the defendant’s testimony.

The Courts of Appeal in Moore and Flores were faced with our pre-Cook rule that the trial court could comment on guilt or innocence, so long as it gave a fair and accurate evidentiary basis for its conclusion and did not undermine defendant’s entire case by an attack on his credibility. (See Brock, supra, 66 Cal.2d at pp. 655-656; Friend, supra, 50 Cal.2d at p. 578.) In each case, the appellate court concluded that the trial court had transgressed these guidelines and usurped the factfinding function of a deliberating jury.

Moore and Flores provide some support for the notion that commentary should be more carefully scrutinized when given to a jury which has begun deliberations. But neither decision remotely suggests that all comment to a deadlocked panel is forbidden. The holdings of both cases have been superseded by Cook’s salutary blanket rule that the judge may never comment on guilt or innocence. The Cook majority implied that its “deadlock” rule was a prophylactic designed to forestall even potential undue influence upon a split jury.

However, we doubt courts may apply such potent preventive medicine against a privilege expressly endorsed by our Constitution. When countervailing constitutional principles are at stake, we must tread carefully, intruding on the one no further than is necessary to sustain the other. We are persuaded that Cook was wrongly decided insofar as it forbids all judicial comment on the evidence to a deadlocked jury. We overrule Cook to that extent.

Of course, appellate courts still must evaluate the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the court’s remarks deprived the accused of his right to trial by jury. (E.g., People v.

Scott (1960) 53 Cal.2d 558, 564 [2 Cal.Rptr. 274, 348 P.2d 882]; Flores, supra, 17 Cal.App.3d at p. 585.) Certainly we would not take the risk that one or more members of a deadlocked jury were influenced to reconsider their views or abandon reasonable doubts by judicial comments which had not been “rigorously scrutinize^]” for “scrupulous” fairness. (See Cook, supra, 33 Cal.3d at p. 415 [dis. opn. of Richardson, J.].) In that spirit, we address appellant’s alternative claim—that the court’s comments in this case were flawed in content. 3.

Claimed Error in Content of Trial Court’s Comments on Evidence (17a) Appellant urges that the first supplemental charge exceeded the trial court’s power of comment because it was distorted and biased in favor of the prosecution. The text of the charge is set out in the margin. Appellant contends that the charge (1) erroneously instructed the jury not to “single out” testimony of Hawthorne favorable to him and (2) emphasized weaknesses in the Hawthorne testimony favorable to him while ignoring parallel weaknesses in the prosecution’s case.

As we have suggested, “a trial court that chooses to comment to the jury must be extremely careful to exercise its power ‘with wisdom and restraint and with a view to protecting the rights of the defendant.’ [Citations.] The court’s comments must be scrupulously fair and may not invade the province of the jury as the exclusive trier of fact. [Citation.]” (Cook, supra, 33 Cal.3d at p. 408.) Appellant argues that the charge to “keep in mind all of the evidence bearing on the issues before you and not necessarily single out any one piece of evidence” was erroneous as applied to the Hawthorne testimony.

He points out that the cautionary injunction to review all the pertinent testimony before finding a fact to be proved by the testimony of a single witness applies only to a finding in favor of the party having the burden of proof, usually the prosecution. (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885 [123 Cal.Rptr. 119, 538 P.2d 247]; Evid.

Code, § 411.) The supplemental charge, however, advised the jury to “not necessarily single out any one piece of evidence” (fn. 10, ante, italics added) and thus did not make review of the other pertinent testimony an absolute prerequisite to reliance on a single witness.

The tentative nature of the advice was emphasized by the introduction: “In addition to the other instructions . . . you may wish to keep two additional things in mind. . . .” (Fn. 10, ante, italics added.) The jury had been properly instructed on the propriety of giving weight to a lesser number of witnesses (CALJIC No. 2.22) and on consideration of a single witness’s testimony as proof of a fact “required to be established by the prosecution” (CALJIC No. 2.27). The substance of this comment was within the court’s constitutional power.

Appellant also complains that the supplemental charge unduly emphasized weaknesses in the testimony of Hawthorne, which was favorable to the defense, while failing to refer to similar defects in the testimony of Jeri Engel, whose testimony on the time issue tended to favor the prosecution and had also been read to the jury. But the only weakness specified as to Engel is her admission that her testimony as to time was based on general estimates, some of which were directly contradicted by the estimates of defense witnesses Madison and Kibbee.

The court’s comment covered that problem by stating: “[M]ost of the witnesses are giving time estimates within a range, such estimates may or may not be accurate and, therefore, may or may not be determinative of the ultimate issues before you.” (Fn. 10, ante.) On the other hand, the relationship between Hawthorne’s and defendant’s “time” testimony presented more complex issues which the court was entitled to explore.

If Hawthorne was most certain she left San Francisco at 1:30 a.m., it is unlikely she arrived in Vacaville, over 50 miles away, by 2 a.m., as she testified, especially since she had received a speeding ticket some time during the evening. Moreover, if, as defendant stated, 1:30 was also the time he and Klaess left Crockett, a point almost halfway between San Francisco and Vacaville, it is unlikely his car met Hawthorne’s near Vacaville at around 2 a.m., as he theorizes.

The court’s comment fairly and accurately noted these inconsistencies. (See also discussion post, at p. 774, fn. 13.) “[A] judge may restrict his comments to portions of the evidence or to the credibility of a single witness and need not sum up all the testimony, both favorable and unfavorable. [Citations.]” (Friend, supra, 50 Cal.2d at p. 578.) It would be an intolerable burden on trial courts, and thus on the privilege of comment, to require the judge, if he wished to discuss particular evidence, to place it in exact context with all other testimony even remotely related, or to recite meticulously all possible inferences which might be drawn from conflicting evidence.

Here the trial court discussed the strength and relevance of Hawthorne’s testimony in greater detail than that of other witnesses, but he placed his remarks in fair perspective. He never suggested he thought Hawthorne was lying or that he believed the evidence proved appellant’s guilt. (Compare Cook, supra.) His commentary focused on one circumstantial piece of a complex puzzle, and he cautioned as much. He reminded the jurors at length that they were the sole factfinders and that each must draw his own conclusions about the case.

We conclude that the court’s remarks fell within the scope of the constitutional privilege. 4. Denial of Mistrial After Jury’s Last Statement It Was Deadlocked Appellant contends it was error to deny the defense motion for mistrial after the jury’s note of February 18 that it was “hopelessly deadlocked.” That was the 18th court day after commencement of deliberations and the 11th day after substitution of an alternate juror. The jury had already sent the court four other expressions of impasse, and had received three supplemental charges.

The court’s response to the note of February 18 was to ascertain the ballots taken and the numerical division (without indication of direction) and to instruct the jury to continue deliberations. During the next three court days, the jury requested the reading of testimony of five witnesses. The day after that, it returned its verdict.

Section 1140 provides: “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such t

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