THE PEOPLE, Plaintiff and Respondent, v. ADAM MIRANDA, Defendant and Appellant; In re ADAM MIRANDA on Habeas Corpus, 44 Cal. 3d 57

Opinion PANELLI, J. Defendant Adam Miranda was convicted of (count

I) first degree murder of Gary Black (Pen.

Code, § 187) with findings that he was armed with a firearm (§ 12022, subd. (a)) and used a firearm (§§ 12022.5, 1203.06, subd. (a)(1)); (count II) assault with intent to commit murder of Kelly Chandler (former § 217) with findings that he was armed with a firearm (§ 12022, subd. (a)), used a firearm (§§ 12022.5, 1203.06, subd. (a)(1)) and inflicted great bodily injury (§ 12022.7); and (count III) first degree burglary (§§ 459, 460) with findings that he was armed with a firearm (§ 12022, subd. (a)), used a firearm (§§ 12022.5, 1203.06, subd. (a)(1)), and inflicted great bodily injury (§ 12022.7).

He was acquitted of (count IV) robbery (§ 211). A special circumstance allegation under the 1978 death penalty law was found true: that the murder was committed while defendant was engaged in the attempted commission of a robbery. (§ 190.2, subd. (a)(17)(i).) The jury additionally made special findings that the killing of Gary Black was wilful, deliberate and premeditated and that the killing occurred as a result of the attempt to commit the crime of robbery. The jury fixed the punishment at death; the appeal is automatic. (Cal. Const., art.

VI, § 11; § 1239, subd. (b).) We have ordered consolidated with the appeal a petition for habeas corpus in which defendant raises a claim of ineffective assistance of counsel. As explained hereafter, we deny defendant’s petition for writ of habeas corpus and affirm the judgment. I. Guilt Phase A. Facts 1. Prosecution Case

a) Counts I-III On September 27, 1980, at approximately 2 a.m., defendant and codefendant Arnold Gonzales entered a 7-Eleven store on Eagle Rock Boulevard in Los Angeles. One of the men asked Christopher Bencomo, the store clerk, if he could buy beer. Bencomo replied that he could not sell beer because it was after 2 a.m. but that they could try at the AM-PM mini-market down the street. Defendant then asked Bencomo, “If I was to rob you would you give me your money?” Bencomo replied, “Sure.” Defendant then reached to his belt, lifted one side of his sweatshirt, and grabbed a handle of something.

Bencomo took a step to the side and said, “You don’t want to do that because there’s somebody in the back with a shotgun that will blow your head off.” Defendant replied, “thanks for the information,” and the two men immediately left the store. Several minutes later, defendant and Gonzales entered the AM-PM mini-market located a couple of blocks from the 7-Eleven store. Gary Black and Kelly Chandler were working behind the counter and Donna Navarro was paying for gas. After Navarro went outside to fill her gas tank, one of the men asked Chandler whether he could buy beer.

Chandler told him it was too late because it was after 2 a.m. Gonzales then asked to buy a pack of cigarettes and handed Chandler a dollar. As Chandler was giving Gonzales his change, he noticed defendant pointing a gun at him. Defendant stated, “This is a hold up . . . put all the money in a brown paper bag.” Black replied, “Okay.” Chandler turned and looked at Gary Black. He then saw Gonzales look in the direction of the TV screen. The store had an audio tape system that recorded activities in the market and also displayed a picture of those activities at the scene. A microphone picked up the sound.

Immediately thereafter, there was a gunshot and Chandler started yelling and screaming. Chandler noticed Gary Black was shot and was down. Gonzales then grabbed the back of defendant’s shirt and tried to get him to leave the store. Gonzales said, “Shoot him, shoot him” as he was turning to leave. Defendant then fired two shots at Chandler and fled from the store. Chandler crawled to the phone, dialed the operator and reported the shooting. Navarro testified that while putting gas in her car she heard a shot, some screaming and a few more shots.

She first observed Gonzales walking out of the store “kind of fast.” She then saw defendant following him and putting something in his waistband. Navarro told the police she recognized defendant since she had attended junior high school with him. She was absolutely certain of her identification of defendant. No money was taken during the incident. Gary Black died as a result of the shooting. Chandler suffered physical injuries for which he was twice hospitalized and later spent 10 days in a mental hospital as a result of emotional trauma. Chandler testified at trial as an eyewitness to the robbery-murder.

On October 3, 1980, Police Sergeant Wynn and several other officers went to a bowling alley on Eagle Rock Boulevard for the purpose of arresting defendant for the murder of Gary Black. When the officers informed defendant he was under arrest, defendant denied his identity and stated his name was Jose Diaz. Defendant then tried to strike an officer and started to run. A struggle ensued between that officer and defendant. During the struggle defendant attempted to put his hand in his right front pants pocket. When the officers gained control over defendant, they handcuffed him and took him outside.

During a search of his person, an officer removed a handgun from defendant’s right front pocket containing five live rounds of ammunition. The officer also found a pocketknife. During a subsequent search at the police station, an unsealed envelope was discovered in defendant’s right rear pants pocket. The officers opened the envelope and found a letter, which was written by defendant to his mother and contained incriminating statements. After being informed of his Miranda rights (Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), defendant talked with Officer Kilgore for approximately two and one-half hours. Defendant told the officer he was with his girlfriend the night of the incident at the mini-market. When Officer Kilgore showed defendant the mini-market videotape, defendant “laughed” and said “Is that supposed to be me?” He said that he had written the letter found by officers to his mother and that it was a “joke.” Following the questioning, Officer Kilgore placed defendant in a jail cell adjacent to the cell of Gonzales.

Both cells contained hidden microphones for purposes of monitoring and taping the conversations between the two men. These tapes were played for the jury at trial. The prosecution additionally introduced a videotape and soundtrack taken at the time of the mini-market shooting and a videotape of the events which occurred minutes before at the 7-Eleven store.

b) Count IV Perry McKay, owner of the New York Cafe, testified that on July 24, 1980, at approximately 9 a.m. he was in the storage area of the restaurant when three armed men, one of whom he identified as defendant, appeared at the door. The armed men ordered everyone to lie down on the floor and then forced McKay to open the safe. They took approximately $4,000 from the safe and also took McKay’s wallet. McKay testified he recognized defendant the day of the robbery because he had previously seen defendant around the restaurant on numerous occasions.

On one occasion McKay discovered defendant in the hallway during closing hours and when he confronted defendant, defendant replied, “I just want to get cigarettes.” 2. Defense Case Testifying in his own defense, defendant gave the following account of the shooting. On the night of September 27, 1980, he had been at the All Star Bowling Alley. A number of people had chipped in to buy a “few cases of beer.” He and Gonzales then went to the 7-Eleven store on Eagle Rock Boulevard. When they arrived, defendant asked the clerk, Bencomo, to sell him some beer. Bencomo told him it was too late.

Defendant then asked Bencomo if he would sell him some beer if he was a relative. He also asked Bencomo if he would give him money if he was a relative. Bencomo replied, “Sure.” Defendant denied posing a hypothetical question concerning a robbery and denied that Bencomo told him there was a person with a shotgun in the store. After leaving the 7-Eleven store, defendant and Gonzales went to the AM-PM mini-market down the street. When they arrived, defendant went to the counter and asked Chandler to sell him some beer. Chandler refused.

Defendant asked again, saying he had money and it was only five minutes after two. Chandler again said no and was rude. Gonzales then purchased cigarettes and Chandler gave him change. Defendant repeated his request to buy beer and Chandler again turned him down. Defendant then pulled out a gun and stated, “Then give me your money.” Defendant testified that at this point he was not intending to rob the store and that he did not remember what his intention was, but he “was just mad” at Chandler for being rude. Chandler then stepped back, crossed his hands and said, “shoot me.” Defendant shot him twice.

Out of the comer of his eye defendant saw Gary Black move; he fired a shot at Black. Defendant testified he shot Black because “he got up too fast.” Defendant stated, “I just moved the gun out of instinct toward him . . . when he [Black] up and moved toward my way the gun automatically just moved and it went off. It wasn’t no time to point or. nothing.” Defendant denied he intended to kill either man, rob the store, or use the gun. Defendant had been drinking and smoking some marijuana but was not drunk.

Gonzales was pretty high or “zombie like.” Defendant additionally denied any involvement in the New York Cafe robbery which took place on July 24, 1980. He testified that on that date he was in Miami working for a company called International Fleet Lines. Dr. Peter Ladefoged, a professor of phonetics at UCLA, was called as a witness by codefendant Gonzales. Dr. Ladefoged analyzed the mini-market videotape and the sound track which was lifted from the tape.

He testified he heard the following: “This is a holdup, man . . . give me all your money in a bag. . . right now, I’ll shoot. . . fast.” He then heard gunshots. At no time did he hear the words “shoot him.” The jury found defendant and codefendant Gonzales guilty of first degremurder (§ 187), assault with intent to commit murder (former § 217), and burglary (§ 459). Defendant was found not guilty of the New York Cafe robbery. (§ 211.) The jury additionally made a number of special findings.

It found the killing of Gary Black was wilful, deliberate and premeditated and that the killing occurred as a result of the attempt to commit the crime of robbery. It also found that codefendant Gonzales was both a conspirator and an aider and abettor of defendant. B. Guilt Phase Issues 1. Pretrial Motions

a) Faretta On March 16, 1981, defendant was arraigned in superior court and a private attorney was appointed. At a hearing conducted three weeks later, the following exchange occurred between defendant and the trial judge: [r. Ingber [DEFENSE counsel]: Mr. Miranda has asked me to place him inr—what is that? ‘Defendaí^t Miranda: PRO. per. counsel. “The Court: THtS^piotion is denied. Perhaps^f should inquire why, before I deny it. Why? Why do you want, to be pro. per. TO assist cocounsel. “The Court: YOU have; adequate comise]. I don’t think he needs any legal help.

Any other jeáson? l-.. “Defendant I^iranda: THAT’S the reason. Mr^Tngber: I will prepare a more formal one, Your Honor. The Court: WE will deny it without prejudice.” ^ ^ Relying on Faretta v. State of California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525], defendant contends he was denied his constitutional right to act as cocounsel. Defendant’s reliance on Faretta, however, is misplaced. Faretta held only that an accused has the right to present his own defense and did not reach the question of dual representation. (People v.

Wheeler (1977) 68 Cal.App.3d 1056, 1059 [137 Cal.Rptr. 791].) In pre-Faretta cases we held that a “ ‘defendant is not entitled to have his case presented in court both by himself and by counsel acting at the same time or alternating at defendant’s pleasure.’” (People v. Hill (1969) 70 Cal.2d 678, 692 [76 Cal.Rptr. 225, 452 P.2d 329], italics omitted; People v. Darling (1962) 58 Cal.2d 15, 19 [22 Cal.Rptr. 484, 372 P.2d 316]; People v.

Mattson (1959) 51 Cal.2d 777, 789 [336 P.2d 937].) We explained that whether a party who is represented by counsel may participate in the presentation of the case is a matter within the sound discretion of the trial judge. (Hill, supra, at p. 692.) We find nothing in Faretta, supra, 422 U.S. 806, which would require us to alter our earlier rule. (People v. Wheeler, supra, 68 Cal.App.3d 1056, 1059; People v. Davis (1984) 161 Cal.App.3d 796, 802, fn. 2 [207 Cal.Rptr. 846]; see People v.

McDaniel (1976) 16 Cal.3d 156, 168, fn. 6 [127 Cal.Rptr. 467, 545 P.2d 843], cert. den. 429 U.S. 847 [50 L.Ed.2d 119, 97 S.Ct. 131].) Accordingly, defendant did not have an absolute right to act as cocounsel in the instant case. The trial court acted within its discretion in denying defendant’s request.

b) Marsden At a hearing on September 15, 1981, defendant handed his attorney a one-page document entitled “Conflict of Interest between Attorney and Client.” When the trial court asked defendant to explain the conflict, defendant responded, “He don’t know how to do nothing.” The court inquired whether there was any other conflict. Defendant replied, “No sir.” The court then stated, “If that’s your only ground for asking for relief, I’ll have to deny it Mr. Miranda.

There’s no showing on your part that he don’t know how to do nothing.” In response defendant asserted, “What I want is a lawyer that knows about this kind of case that we’re dealing with right here.” The court assured defendant his attorney knew “how to handle a [Penal Code section] 187. He’s handled numerous of them ...[]]] He’s one of the most respected attorneys around here.” Citing People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44], defendant maintains the trial court improperly denied his request to substitute counsel by not adequately inquiring into the factual basis of his request.

This contention is without merit. “[T]he decision to allow a substitution of attorney is within the discretion of the trial judge ‘unless there is sufficient showing that the defendant’s right to the assistance of counsel would be substantially impaired if his present request was denied. . . (People v. Smith (1985) 38 Cal.3d 945, 956 [216 Cal.Rptr. 98, 702 P.2d 180] (quoting People v.

Carr (1972) 8 Cal.3d 287, 299 [104 Cal.Rptr. 705, 502 P.2d 513]).) In Marsden, supra, 2 Cal.3d at page 124, we held it was an abuse of discretion to deny the defendant an opportunity to enumerate specific examples of inadequate representation. We determined the trial court had in fact abused its discretion by refusing to listen to the reasons for which defendant had requested substitution of counsel. Here, by contrast, the trial court specifically asked defendant to state the reason he believed a conflict existed between defendant and his attorney.

Defendant failed to offer any factual or concrete grounds for his dissatisfaction. Instead, defendant’s only explanation was that his appointed attorney “. . . don’t know how to do nothing.” We think it would have been helpful had the court probed further by asking defendant to be more specific or by inquiring into general areas of dissatisfaction. (See People v. Munoz (1974) 41 Cal.App.3d 62, 66 [115 Cal.Rptr. 726].) The failure to ask follow-up questions may make it more difficult for a trial court to thoughtfully exercise its discretion in a manner required by Marsden, supra, 2 Cal.3d 118.

Additional questioning may assist the court in assessing the merit or lack thereof of a defendant’s motion. On the record before us, however, there is nothing to indicate further inquiry would have uncovered specific examples of inadequate representation. It is additionally significant that the trial court granted defendant’s subsequent motion for the appointment of second counsel. We conclude the court acted within its discretion in denying defendant’s motion to substitute counsel. (See People v. Smith, supra, 38 Cal.3d at p. 956; People v. Carr, supra, 8 Cal.3d at p. 299; People v.

Salazar (1977) 74 Cal.App.3d 875, 887 [141 Cal.Rptr. 753].) The Marsden motion was properly denied.

c) Joinder Codefendant Gonzales moved pretrial to sever the counts relating to the mini-market incident from the counts in which he was not named, including the robbery at the New York Cafe (count IV) and the attempted robbery and assault with a deadly weapon on Raymond Perez (counts V and VI). Gonzales argued joinder would substantially prejudice his case since the jury was likely to infer he was somehow connected to the other crimes.

In opposing the motion, the prosecutor indicated the charges were consolidated “in the interest of time.” He explained that a separate murder charge was pending against defendant and that if they proved the charges in counts IV, V, and VI in the guilt phase, they would not have to prove them again in the penalty phase of the second trial. The trial court denied Gonzales’s motion, agreeing with the prosecutor that joinder would save time and result in judicial economy. Although defendant was present at the time Gonzales made the motion to sever, he did not join in the motion.

Nor did defendant take any steps during trial to challenge the consolidation of the unrelated counts. He therefore has waived any objection and may not now claim that there was a misjoinder resulting in prejudice to him. (People v. Van De Wouwer (1949) 91 Cal.App.2d 633, 640 [205 P.2d 693]; see People v. Kemp (1961) 55 Cal.2d 458, 474-475 [11 Cal.Rptr. 361, 359 P.2d 913]; People v.

Lyons (1970) 4 Cal.App.3d 662, 666 [84 Cal.Rptr. 535].) Moreover, even if defendant had joined in the motion, the denial of the severance motion was not error as to him. “We must evaluate motions for severance ... in light of the showings then made and the facts then known. [Citations.]” (People v. Balderas (1985) 41 Cal.3d 144, 171 [222 Cal.Rptr. 184, 711 P.2d 480].) There was absolutely no showing of prejudice to defendant at the time the motion was made. We believe defendant’s failure to make a motion to sever is dispositive of the issue.

But, even if defendant had made such a motion and even if the trial court had erroneously denied the motion, any error was clearly harmless. As to the attempted robbery and assault offenses (counts V and VI), the prosecutor introduced no evidence related to the charges at trial and ultimately dismissed them at the conclusion of his case-in-chief. It is, therefore, inconceivable that a result more favorable to defendant would have been reached had the trial court initially severed counts V and VI. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) We are unpersuaded by defendant’s assertion that substantial prejudice resulted solely from the reading of the charges to the jury prior to voir dire. Nor did defendant suffer any prejudice from joinder of the New York Cafe robbery charge. The fact that the jury ultimately acquitted defendant of the robbery offense demonstrates that the jury was able to view and evaluate the evidence on each charge separately. (See People v.

Stewart (1985) 165 Cal.App.3d 1050, 1056-1057 [212 Cal.Rptr. 90].) Moreover, given the overwhelming evidence to support the jury verdict on the mini-market counts, there was no possibility that the jury relied on the New York Cafe robbery count to support its finding of guilt. We determine therefore it is not reasonably probable that a result more favorable to defendant would have been reached had the robbery count been severed from the case. (People v. Watson, supra, 46 Cal.2d 818, 836.) 2. Selection of Jury

a) Representative Jury Defendant contends the exclusion of prospective jurors because of their opposition to the death penalty denied him the right to a jury chosen from a representative cross-section of the community. A majority of this court rejected the contention in People v. Fields (1983) 35 Cal.3d 329, 342-353 [197 Cal.Rptr. 803, 673 P.2d 680] (plur. opn.), 374 (Kaus, J., conc.). (Accord Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758].)

b) Separate Juries Defendant argues that the trial court’s failure to provide separate juries for the guilt and penalty phases violated his due process rights and his right to trial by an impartial jury. (U.S. Const., 5th, 6th and 14th Amends.; Cal. Const., art. I, §§ 7, 15 and 16.) In support of this contention, defendant asserts that the process of death qualification, as required by Witherspoon, resulted in a jury biased in favor of the prosecution. This contention has previously been rejected by this court in Hovey v.

Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301] and by the United States Supreme Court in Lockhart v. McCree, supra, 476 U.S. at pp. 176-177 [90 L.Ed.2d at pp. 149-150, 106 S.Ct. at pp. 1766-1767].)

c) Peremptory Challenges Although defendant did not exhaust the available peremptory challenges, nor did he raise the issue below, he contends that, in a capital case involving codefendants, each defendant is independently entitled to exercise 26 peremptory challenges.

Section 1070, subdivision (

a) provides in pertinent part: “If the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to 26 and the state to 26 peremptory challenges.”

Section 1070.5, subdivision (

a) provides in pertinent part: “[W]hen two or more defendants are jointly tried . . . , the state and the defendants shall be entitled to the number of challenges prescribed by

Section 1070, which challenges on the part of the defendants must be exercised jointly.” The issue raised here was settled in People v. Lara (1967) 67 Cal.2d 365 at pages 394-395 [62 Cal.Rptr. 586, 432 P.2d 202], where we stated “Penal Code

section 1070.5 carefully prescribes the number of and manner of exercising peremptory challenges by joint defendants, and that statute does not violate either defendant’s right to trial by an impartial jury or any other constitutional right.” (See People v. King (1966) 240 Cal.App.2d 389, 398-402 [49 Cal.Rptr. 562, 21 A.L.R.3d 706].) Defendant additionally argues that the prosecutor’s use of peremptory challenges on all prospective jurors with reservations about the death penalty systematically excluded jurors on the ground of group bias in violation of the California Constitution under People v.

Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]. We have previously rejected this argument in People v. Zimmerman (1984) 36 Cal.3d 154, 160-161 [202 Cal.Rptr. 826, 680 P.2d 776] and People v. Turner (1984) 37 Cal.3d 302, 313-315 [208 Cal.Rptr. 196, 690 P.2d 669]. 3. Evidentiary Issues

a) Letter Defendant contends the trial court erred in admitting the letter seized at the time he was booked into jail. At trial defendant objected to the admission of the letter on the basis of First Amendment privacy principles and Evidence Code

section 402. The trial court overruled the objection. In the trial court, defendant repeatedly denied that he was raising a Fourth Amendment issue or that his objection arose in connection with

section 1538.5. On appeal, defendant does not reassert his First Amendment or relevancy objections. Instead, he now maintains that the letter was the product of an illegal search and as such we should treat his objection as a motion made under

section 1538.5. However, a motion to test the validity of a search or seizure must be raised in the superior court to preserve the point for review on appeal. (§ 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896 [150 Cal.Rptr. 910, 587 P.2d 706]; People v. Low (1983) 148 Cal.App.3d 89, 92 [196 Cal.Rptr. 18].) A motion made on the wrong ground in the superior court does not preserve the issue. (People v. Lopez (1978) 81 Cal.App.3d 103, 108 [146 Cal.Rptr. 165].) Moreover, defendant failed to assert his motion prior to trial as required by

section 1538.5, subdivision (h). (People v. Martinez (1975) 14 Cal.3d 533, 537 [121 Cal.Rptr. 611, 535 P.2d 739]; People v. Label (1974) 43 Cal.App.3d 766, 772 [119 Cal.Rptr. 522].) Defendant, therefore, cannot now challenge the validity of the search since he failed to preserve the issue either by proper objection at trial or by pretrial motion. (People v. Lopez, supra, at p. 108; see People v. Easley, supra, 34 Cal.3d at p. 869.) Alternatively, defendant contends he was denied effective assistance of counsel by counsel’s failure to timely move to suppress the letter. This contention is without merit.

As explained below, the letter was admissible as the product of a lawful booking search. Police officers searched defendant outside the bowling alley shortly after his arrest. When defendant arrived at the police station, he was again pat-searched as part of the booking process. During the booking search, an officer discovered an unsealed envelope inside defendant’s right rear pocket. The officer opened the envelope and found the letter written by defendant to his mother. Defendant claims that inspection of the envelope was an unlawful intrusion into a “closed container” (see United States v.

Chadwick (1977) 433 U.S. 1 [53 L.Ed.2d 538, 97 S.Ct. 2476]) and exceeded the lawful scope of a booking search (see People v. Laiwa (1983) 34 Cal.3d 711, 726 [195 Cal.Rptr. 503, 669 P.2d 1278]). He is mistaken. A search of the personal effects of an arrested person at the time of booking is a reasonable search under the California and federal Constitutions. (People v. Ross (1967) 67 Cal.2d 64, 70 [60 Cal.Rptr. 254, 429 P.2d 606], revd. on other grounds sub nom. Ross v. California (1969) 391 U.S. 470 [20 L.Ed.2d 750, 88 S.Ct. 1850]; Illinois v.

Lafayette (1983) 462 U.S. 640 [77 L.Ed.2d 65, 103 S.Ct. 2605].) Although variously stated in our opinions (see, e.g., People v. Maher (1976) 17 Cal.3d 196, 200-201 [130 Cal.Rptr. 508, 550 P.2d 1044], and cases cited), the purposes of and justifications for such a search are essentially two—to safeguard and account for the arrestee’s belongings and to promote jail security. (People v. Laiwa, supra, at p. 726; see also Illinois v.

Lafayette, supra, at p. 646 [77 L.Ed.2d at p. 71].) The permissible scope of a booking search is broad: it may “involve an item-by-item examination of everything in the arrestee’s pockets or otherwise on his person, including looking into his wallet or into containers on the person; it may even extend to a strip search.” (2 LaFave, Search and Seizure (2d ed. 1987) § 5.3(a), p. 482, fns. omitted; accord, Illinois v. Lafayette, supra, at pp. 646-647 [77 L.Ed.2d at p. 71].) People v. Laiwa, supra, 34 Cal.3d 711 is not contrary.

Rather, in Laiwa we recognized the “legitimate purposes” of the booking search (id. at p. 727) and merely determined that a so-called “accelerated booking search” does not promote these goals (id. at pp. 726-727). In the instant case the removal of the letter from its unsealed envelope took place during an inventory booking search of defendant’s possessions. The letter therefore was lawfully seized and its admission into evidence was proper. Consequently, defense counsel’s failure to raise the search issue did not prejudice defendant. (People v.

Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144]; People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) b) 7-Eleven Incident Defendant contends the trial court erred in admitting testimony and a videotape concerning events which took place at the 7-Eleven store immediately prior to the robbery-murder. Defendant maintains the evidence should have been excluded under Evidence Code

section 1101, subdivision (

a) as impermissible evidence of an uncharged attempted robbery. The challenged evidence disclosed that minutes before the killing, defendant and codefendant Gonzales were at a 7-Eleven store. After being denied the purchase of beer, defendant asked the store clerk, Bencomo, “if I was to rob you, would you give me your money?” Defendant then pulled up his shirt and grabbed a handle of some sort. Bencomo warned defendant that there was someone in the back of the store with a shotgun who would “blow your head off.” Defendant thanked him for the information.

Bencomo also told defendant he might be able to buy beer at the mini-market down the street. Defendant and Gonzales then immediately drove to the mini-market where the shooting occurred. Evidence of other crimes or prior bad acts is inadmissible solely to prove an accused had the predisposition to commit the charged offense. (Evid. Code, § 1101, subd. (a); People v. Alcala (1984) 36 Cal.3d 604, 631 [205 Cal.Rptr. 775, 685 P.2d 1126]; People v.

Willoughby (1985) 164 Cal.App.3d 1054, 1062 [210 Cal.Rptr. 880].) However, the evidence may be admitted when it is relevant to prove another issue in the case such as opportunity, intent, knowledge, identity, or absence of mistake. (Evid. Code, § 1101, subd. (b).) Because of its inflammatory impact, evidence relevant on one of these theories should be excluded when it is “not relevant to an issue expressly in dispute [citation], . . . ‘merely cumulative . . .’ [citations], or . . . more prejudicial than probative under all the circumstances. [Citations.]” (People v. Alcala, supra, at pp. 631-632.

Accord, People v. Thompson (1980) 27 Cal.3d 303, 314-318 [165 Cal.Rptr. 289, 611 P.2d 883].) At trial the prosecutor argued the evidence of the events at the 7-Eleven store was relevant to show codefendant Gonzales’s state of mind and degree of participation in the robbery. The trial court agreed and overruled defendant’s objections to the evidence. The Attorney General similarly maintains the evidence was properly introduced to establish the “active, conscious and intentional participation” of codefendant Gonzales in the robbery murder.

He impliedly concedes that the evidence was not admissible against defendant since the evidence was entirely cumulative on the issue of defendant’s identity and state of mind. The jury, however, was never instructed on the limited admissibility of the evidence. At trial, defendant requested that the court give a limiting instruction in connection with Bencomo’s testimony. After lengthy discussion, the trial court agreed that such an instruction was proper.

Immediately prior to Bencomo’s testimony, the court told the jury that “the evidence which you are about to receive is offered for a limited purpose, and you will receive further instructions on that at the conclusion of the case.” However, at the conclusion of the trial, the trial court failed to so instruct the jury. Since the 7-Eleven evidence was admissible as to only one defendant, the trial court’s failure to give a requested limiting instruction constitutes error. (Evid. Code, § 355; see People v.

Sweeney (1960) 55 Cal.2d 27, 42-44 [9 Cal.Rptr. 793, 357 P.2d 1049]; 1 Witkin, Evidence (3d ed. 1986) § 313, pp. 285-286.) Such error, however, is clearly harmless in the instant case. The case against defendant was virtually airtight. Chandler’s eyewitness testimony, Navarro’s identification testimony, the mini-market videotape and soundtrack, and defendant’s own testimony established without a doubt that defendant was guilty of the charged crimes. It is not reasonably probable that in the absence of the 7-Eleven evidence a result more favorable to the defendant would have resulted. (People v.

Watson, supra, 46 Cal.2d at p. 836.)

c) Defendant’s Arrest Defendant additionally contends the testimony of two police officers concerning the circumstances of his arrest constituted inadmissible evidence of an uncharged offense of assaulting a police officer. Defendant acknowledges that he failed to object to this evidence at trial. Nonetheless, he argues that the evidence should have been excluded by the trial court on its own motion or, in the alternative, that counsel’s failure to object constituted ineffective assistance of counsel.

Defendant’s actions at the time of his arrest were clearly relevant to show his consciousness of guilt and his knowledge of the magnitude of the crime. (Cf. People v. Dabb (1948) 32 Cal.2d 491, 500 [197 P.2d 1]; People v. Perry (1972) 7 Cal.3d 756, 771 [103 Cal.Rptr. 161, 499 P.2d 129].) Hence, the court was not obligated to sua sponte exclude the evidence. Defendant’s ineffective assistance claim must also fail since it is not reasonably probable that a determination more favorable to defendant would have resulted had counsel objected to the challenged evidence. (See People v.

Fosselman, supra, 33 Cal.3d 572, 584; People v. Pope, supra, 23 Cal.3d 412, 425.)

d) The Jail Cell Tapes Following his arrest, defendant was advised of his Miranda (Miranda v. Arizona, supra, 384 U.S. 436) rights and thereafter agreed to speak with Officer Kilgore of the Los Angeles Police Department Homicide Division. During the discussion, defendant denied involvement in the murder of Gary Black. Officer Kilgore had previously spoken with codefendant Gonzales for approximately two hours.

Defendant was then transported to Parker Center jail where, as previously mentioned, Officer Kilgore arranged to have defendant and Gonzales placed in two separate jail cells which contained hidden microphones for the purpose of monitoring and recording conversations. Officer Kilgore testified the purpose of the tape recording was to obtain information helpful for the investigation of the case.

During the tape-recorded conversation Gonzales repeatedly warned defendant that the “rooms are taped.” Defendant nevertheless discussed the circumstances of his arrest: “They fuckin tackled me I ran after two of them they fuckin say are you Adam Miranda and I say no, I’m Robert Diaz . . . Everybody was just tripping out on me and I tried to go for my cuete [gun] and shit the mother fucker was all over me hey and when he finally threw me down. ...

He had his knee over my fuckin over the cuete [gun] . . . and I tried to put my hand in there ...” Defendant stated that he was about to leave for Mexico but that he “wouldn’t have been safe there . . . because . . . they were waiting for me at the border.” Defendant also spoke about the people who informed on him to the police. He stated that he believed “Laurie” called the police and then he warned, “I know I ain’t getting outa [jail], but if by any chance I do . . . , I’m coming right back.” Defendant additionally told Gonzales that the police had shown him the videotape of the shooting.

Defendant stated: “Shit it showed everything ... it showed mostly you . . . And you remember that bitch that you say you put in front of you? . . . She came back (laughter) she came back into the store and looked over the counter. . . . Yeah, you can hear, they even have our voices, or they had mine. . . . When I told them this is a hold up. I know and he said fuck you, shoot me. He said it like that you know he said, then you hear them on the fuckin telephone yeah robbery here robbery here, at so and so place, help we’ve been shot we’ve been shot (laughter) ...

It sounds funny . . . cause ... he was talking like he couldn’t . . . (laughter) the camera didn’t show them at all it was just, it was just you and I, and that lady.” Defendant made no objection at the time the tape was played for the jury. However, at the conclusion of the evidentiary portion of the guilt phase, defendant objected to the admission of the tape based on “First Amendment and Fifth Amendment rights.” The trial court overruled the objection. Defendant now contends the trial court erred in permitting the jail cell tape to be introduced into evidence.

Defendant claims the tape recording violated his right of privacy, the Fifth Amendment ban against self-incrimination and his Sixth Amendment right to counsel. The People counter that defendant’s objection was untimely and therefore cannot be raised on appeal. (See 3 Witkin, Evidence, supra, § 2012, pp. 1971-1972.) We determine that, even assuming defendant had made a timely objection, each of his contentions lacks merit. For his privacy argument defendant relies upon De Lancie v. Superior Court (1982) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142]. In Donaldson v.

Superior Court, supra, 35 Cal.3d at page 39, we held De Lancie does not apply to police conduct which took place before the decision was filed. Here the taping occurred on October 4, 1980. Since De Lancie was filed on July 8, 1982, defendant’s privacy contention must fail. Defendant next argues that prior to being placed in a jail cell near Gonzales’s cell he should have been given additional Miranda warnings. However, Miranda was concerned only with custodial police interrogation and therefore does not apply to the instant situation. (People v.

Whitt (1984) 36 Cal.3d 724, 745 [205 Cal.Rptr. 810, 685 P.2d 1161].) Miranda warnings are not required when an accused makes statements to a private citizen, absent evidence of an agency relationship between the citizen and law enforcement officials. (Ibid.) Defendant admits that Gonzales was not in any way acting as an agent for the government. Defendant lastly contends the taping violated his Sixth Amendment right to counsel. (United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115, 100 S.Ct. 2183].) Defendant acknowledges that he failed to raise the Sixth Amendment claim below.

He maintains, however, that his Fifth and Sixth Amendment rights are “inextricably intertwined” and therefore he should not be precluded from raising the issue. Alternatively, defendant argues he was denied the effective assistance of counsel by counsel’s failure to preserve the Sixth Amendment claim. We conclude that counsel’s failure to articulate the Sixth Amendment basis of his objection did not result in any prejudice. (See People v.

Whitt, supra, 36 Cal.3d 724, 740.) A defendant’s right to counsel is not implicated where an accused voluntarily makes statements to a cellmate, who is not acting as a government agent or informant. (Id. at pp. 741-744.) 4. Sufficiency of Evidence Defendant contends that there was insufficient evidence of premeditation and deliberation to support a verdict of first degree murder.

In reviewing the sufficiency of the evidence, we must draw all inferences in support of the verdict that can reasonably be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; People v. Lunafelix (1985) 168 Cal.App.3d 97, 100 [214 Cal.Rptr. 33].) In People v.

Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942], we set forth three categories of evidence which might sustain a finding of premeditated murder: (1) facts about a defendant’s behavior before the killing that show prior planning of it; (2) facts about any prior relationship or conduct with the victim from which the jury could infer a motive; and (3) facts about the manner of the killing from which the jury could infer that the defendant intentionally killed the victim according to a preconceived plan. The record here shows evidence of premeditation pertaining to each of the three categories.

As to the first category, the fact that defendant brought his loaded gun into the store and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance. Moreover, defendant’s warning that Chandler and Black should give him the money or he would shoot implies that defendant contemplated the killing. It has been recognized that premeditation can occur in a very brief period of time. (People v.

Velasquez (1980) 26 Cal.3d 425, 435 [162 Cal.Rptr. 306, 606 P.2d 341].) “ ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, . . .’” (Ibid.) As to motive, the evidence showed that immediately prior to the killing, Chandler and Black refused to sell beer to defendant. Defendant testified he became angry because he believed the men were being rude to him. Defendant requested to buy beer several more times but each time was refused.

The conversation between defendant and his victims suggests that defendant acted with conscious motive and had time to reflect upon his plan to shoot the victims. “[T]he law does not require that a first degree murderer have a ‘rational’ motive for killing. Anger at the way the victim talked to him . . . may be sufficient.” (People v. Lunafelix, supra, 168 Cal.App.3d at p. 102; see People v. Jackson (1981) 121 Cal.App.3d 862, 873-874.) The manner of killing also suggests the shooting was conceived in advance. Defendant shot Black and Chandler, who were unarmed and standing behind the counter a few feet away.

The lack of provocation by the victim leads to an inference that an attack was the result of a deliberate plan rather than a “rash explosion of violence.” (People v. Lunafelix, supra, 168 Cal.App.3d at p. 102.) We conclude the evidence, viewed in the light most favorable to the prosecution, supports a finding of premeditated and deliberate first degree murder. 5. Instructional Error Defendant claims the jury was not adequately instructed on diminished capacity.

In asserting this argument, defendant acknowledges that the jury was given the general diminished capacity instruction (CALJIC No. 3.35) and the voluntary intoxication instruction (CALJIC No. 4.21). He complains, however, that the trial court did not additionally sua sponte instruct in the language of CALJIC No. 8.77, which specifically applies the general diminished capacity rule to murder and voluntary manslaughter crimes. (See People v.

Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911].) Contrary to defendant’s assertions, we believe the given instructions (CALJIC Nos. 3.35, 4.21) adequately informed the jury that evidence of diminished capacity was relevant in determining whether defendant acted with the requisite intent at the time of the shooting. Moreover, even if the jury had not been so instructed, based on the evidence in this case, the trial judge was clearly not obligated to instruct the jury on its own motion.

It is settled that the trial court is under no duty to sua sponte instruct on the issue of diminished capacity unless substantial evidence is presented at trial raising such a defense. (People v. Turner, supra, 37 Cal.3d at pp. 325-326; People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390]; People v. Conley, supra, 64 Cal.2d at p. 319; People v. Cram (1970) 12 Cal.App.3d 37, 41 [90 Cal.Rptr. 393].) A defendant’s mere consumption of drugs or alcohol prior to the commission of a crime is generally insufficient to warrant an instruction on diminished capacity. (People v.

Turner, supra, at pp. 325-327; People v. Carr, supra, 8 Cal.3d 287 at pp. 294-295; People v. Cram, supra, at p. 44.) A review of the record reveals that the evidence of defendant’s diminished capacity was practically nonexistent. The sole evidence on this issue was defendant’s own testimony that he had been “drinking and smoking some weed” earlier that evening, but that he was not intoxicated when he entered the mini-market. In response to a question from his attorney, defendant declined to state that his intoxication was the reason for the shooting.

He testified that codefendant Gonzales, unlike himself, appeared to be “under the influence” during the incident. On this record, we conclude the instructions given to the jury on the issue of diminished capacity were adequate. C. Special Circumstance Issues 1. Intent to Kill Citing Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], defendant contends that the felony-murder special-circumstance finding must be vacated because the court failed to instruct the jury that it could find the allegation true only if it found that defendant acted with intent to kill. In People v.

Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306] we reconsidered our Carlos decision. We concluded that the court need not instruct on intent to kill as an element of the felony-murder special circumstance unless there is evidence from which the jury could find that the defendant was an accomplice rather than the actual killer. (Id. at pp. 1138-1139.) Here all the evidence showed that defendant actually killed Gary Black.

Moreover, in finding defendant guilty of first degree murder, the jury made a special finding that the killing was wilful, deliberate, and premeditated, which finding necessarily includes a finding of the intent to kill. (People v. Burgener (1986) 41 Cal.3d 505, 536-537 [224 Cal.Rptr. 112, 714 P.2d 1251]; People v. Phillips (1985) 41 Cal.3d 29, 59 [222 Cal.Rptr. 127, 711 P.2d 423].) Failure to instruct on intent was not error. 2. Independent Felonious Purpose Relying on People v.

Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468], defendant contends the jury was not adequately informed that in order to find the special circumstance to be true, it had to find the murder was committed to advance the commission of the attempted robbery. Defendant’s contention is not supported by the record. In People v. Green, supra, 27 Cal.3d at pages 59-62, we set aside a robbery-murder special circumstance because there was no showing that the murder was committed to advance an independent felonious purpose. (See People v. Weidert (1985) 39 Cal.3d 836, 842 [218 Cal.Rptr. 57, 705 P.2d 380]; People v.

Thompson, supra, 27 Cal.3d at pp. 321-325.) The Attorney General in Green conceded that the robbery was merely incidental to the murder since the sole object of the robbery was to conceal the identity of the murder victim. The jury, however, had been told it could find the special circumstance to be true if the murder took place during the robbery regardless of the relationship between the two crimes. By contrast, in the instant case, the jury was expressly instructed that “to find the special circumstance ... is true, it must be proved 1.

That the murder was committed while the defendant was engaged in the commission of a robbery, and 2. That the murder was committed in order to carry out or advance the commission of the crime of robbery, or to facilitate the escape therefrom or to avoid detection.” (Italics added.) Defendant did not request any additional instruction on this point at trial. There is no doubt that the final sentence of the instruction effectively informed the jury that in order to find the special circumstance to be true it had to find the murder was committed in furtherance of the robbery.

Moreover, in Green there was overwhelming evidence that the robbery was merely incidental to the murder. Here, unlike Green, the evidence of the robbery is compelling. Defendant points to several facts suggesting that the killing was not perpetrated pursuant to a robbery, such as the events which transpired at the 7-Eleven store, defendant’s anger at Kelly Chandler, defendant’s testimony that he did not intend to rob or kill, and the fact that nothing was actually taken at the robbery.

However, upon a review of the record, especially the audio portion of the videotape where defendant stated “this is a holdup, . . . give me all your money in a bag,” we are convinced the crime was nothing more “than a cold blooded killing in the perpetration of a robbery.” (People v. Sanders (1983) 145 Cal.App.3d 218, 223 [193 Cal.Rptr. 331], disapproved on other grounds in People v. Mattson (1984) 37 Cal.3d 85, 94, fn. 4 [207 Cal.Rptr. 278, 688 P.2d 887].)

Section 190.4 Defendant further argues that the special circumstances should be set aside because (1) “the information was inherently confusing” concerning the special circumstance crime (see § 190.4) and (2) “the trial court failed to adequately instruct the jury regarding proof of the special circumstances.” Both contentions are without merit. Defendant was charged in count I with murder, count II with assault with intent to commit murder, count III with burglary with intent to commit larceny, and count IV with robbery.

Counts I, II and III relate to the mini-market incident and count IV relates to the New York Cafe incident. Although defendant was never separately charged with attempted robbery (at the mini-market), this crime was the basis for the felony-murder charge and the special circumstance allegation that the murder was committed in the course of an attempted robbery.

Section 190.4, subdivision (

a) provides in pertinent part: “Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.” Defendant maintains the prosecution did not separately charge and prove the separate offense of attempted robbery as required by this code section. In People v. Robertson (1982) 33 Cal.3d 21, 47-48 [188 Cal.Rptr. 77, 655 P.2d 279] and People v. Velasquez, supra, 26 Cal.3d at page 434, footnote 6, we held that the failure to charge pursuant to

section 190.4 does not require per se reversal. We asserted that no prejudice results from the failure to separately charge the underlying felony when the defendant is put on notice that he was required to defend against the underlying crime. Defendant fully concedes he received adequate notice of the attempted robbery charge by the special circumstance allegation. He argues instead that “the pleading . . . violated another of the purposes of

section 190.4—that is to ensure that the jury is properly focused upon the special circumstance crime.” Defendant cites no authority for this proposition. We find it difficult to understand how the jury here was not “focused” on the underlying attempted robbery crime.

The jury was specifically instructed that to find the special circumstance true it must find the murder was committed during the “attempted commission of the crime of robbery.” Defendant additionally contends that since the attempted robbery was not a separately charged offense, the jury was not properly told of the elements of the crime and therefore the special circumstance must be set aside. We agree that the trial court erred in failing to specifically instruct on the attempted robbery crime.

However, there was no prejudice to defendant since the elements of attempted robbery were before the jury under other properly given instructions. (See People v. Sedeno, supra, 10 Cal.3d at p. 721.) The jury was in fact separately instructed as to the elements of attempt (CALJIC No. 6.00) and robbery (CALJIC No. 9.10). Contrary to defendant’s assertions, the fact that the robbery instruction was given in connection with count IV (the New York Cafe incident) is wholly immaterial. There is no doubt that the jury understood that the same elements of robbery were applicable to the special circumstance allegation.

We therefore determine there was no reversible error. II. Penalty Phase A. Facts At the penalty phase, the only evidence offered by the prosecution concerned defendant’s killing of Robert Hosey approximately two weeks before the murder in the instant case. Joe Saucedo testified as follows: On September 12, 1980, he and Tomas Martinez bought two PCP cigarettes from Hosey. After the purchase, Saucedo and Martinez discovered the cigarettes did not contain PCP. The two men then took Hosey in Martinez’s vehicle and drove around looking for the person from whom Hosey had obtained the cigarettes.

They were unable to find this individual and drove to Sauce-do’s residence. When they arrived at Saucedo’s house, a number of individuals, including defendant, began arguing with Hosey concerning the “bunk” he had sold to Martinez and Saucedo. Saucedo observed a knife in Hosey’s back pocket and removed it. Defendant asked for the knife and Saucedo gave it to him. During the argument, someone pushed Hosey down to the ground. Hosey got up and began running down the street. Defendant ran after him. Martinez and Saucedo reentered Martinez’s car and began chasing Hosey.

Shortly thereafter Saucedo got out of the car, ran towards Hosey, and tripped him. At this point defendant “jumped on top of [Hosey] and started stabbing him.” Hosey tried to stand up and begged defendant not to kill him. Defendant grabbed Hosey by the hair and continued stabbing him. Saucedo tried to separate the two men, and in the process, Saucedo “got stabbed in the hand.” Saucedo returned to his car and found a shirt which he put around his hand to stop the bleeding. Hosey later died as a result of multiple stab wounds to the face and neck.

Saucedo also testified that when they first arrived at his house, several girls, including Patricia Torres, were standing outside. At trial, Patricia Torres did not recall the events of that evening. She had made a prior statement, under oath, at the district attorney’s office, and portions were read into the record at trial. In the prior statement, Torres had corroborated Saucedo’s version of the events.

She stated that when Saucedo and Martinez brought the man (later identified as Hosey) to the apartment, she thought Hosey had “ripped [Martinez] off.” She noticed that defendant had a knife and was telling Hosey to give back the money. Defendant was holding the knife about two inches away from Hosey’s neck. Torres saw someone push Hosey onto the ground. Hosey then ran down the street. Torres noticed defendant and “two other guys” following after Hosey. Martinez and Saucedo then got in the car and went down the street. Later in the evening Saucedo returned with his hand wrapped in a blood-soaked shirt.

Saucedo was charged with murder with respect to the death of Hosey. In exchange for his agreement to testify, the charge was reduced to assault with a deadly weapon, and, upon a plea of guilty, he was given probation. Defendant did not testify nor did he present any mitigating evidence at the penalty phase. At the time, he had been charged but not tried for the Hosey murder. B. Penalty Phase Issues 1. Witherspoon-Witt Error Defendant contends that the exclusion of two prospective jurors because of their views on the death penalty was contrary to the standards established in Witherspoon v.

Illinois, supra, 391 U.S. 510. (See People v. Velasquez, supra, 26 Cal.3d at pp. 436-437.) He argues that the jurors failed to make it “unmistakably clear” that they “would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial. . . .” (Witherspoon, supra, at p. 522, fn. 21 [20 L.Ed.2d at p. 785]; Hovey v. Superior Court, supra, 28 Cal.3d at pp. 10-11; Velasquez, supra, at p.436.) The United States Supreme Court has recently broadened Witherspoon’s requirement that a juror’s bias be proved with “unmistakable” clarity. (Wainwright v.

Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 852, 105 S.Ct. 844, 852].) The applicable standard enunciated in Witt “is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Ibid. [83 L.Ed.2d at pp. 851-852]) The court explained “determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.” (Ibid.) Under Witt, therefore, our duty is to “examine the context surrounding [the juror’s] exclusion to determine whether the trial court’s decision that [the juror’s] beliefs would ‘substantially impair the performance of his duties . . .’was fairly supported by the record.” (Darden v.

Wainwright (1986) 477 U.S. 168, 176 [91 L.Ed.2d 144, 154, 106 S.Ct. 2464, 2469].) In People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250], we adopted the Witt standard. Here, however, we conclude that applying either the Witt or the stricter Wither-spoon standards, the two jurors were properly excused for cause. Defendant first challenges the exclusion of prospective juror Pauline Bia. During the individual voir dire, Bia responded to a question by stating, “I don’t think I can vote for the death penalty.” Later, the following colloquy occurred between the court and Bia: ‘Ms.

Bia: Never vote for a verdict of death. ‘The Court: AND my inquiry of you is whether you hay<? sucfT"a^~ conscientious opinion concerning the death penalty that it woiild not matter what the eVidence was, that under no circumstances could you vote for the death penalty? “Ms. Bia: No. ‘The Court: what?;>^ ‘Ms. BlA:^=don’t think I can vote for the death penalty. ie Court: The key word is automatically, and that is, Would you ^automatically and absolutely refuse to vote for such a penalty? IA: Yes. “The Court: REGARDLESS of the evidence? “Ms.

Bia: Yes, I will refuse. . ^ “The CouRt: . ^ . [Y]OU would automatically vote for life imprison-lent without the possibility of parole and never vote for a verdict of death? There was no ambiguity here. Even applying the stricter Witherspoon standard, Bia was properly excused for cause. While Bia did appear confused by some of the court’s earlier inquiries, her answers to the later questions made her absolute opposition to voting for the death penalty “unmistakably clear.” Prospective juror Bia left no doubt that she would automatically vote against the imposition of the death penalty regardless of the evidence.

Defendant next challenges the exclusion of prospective juror Robert Manley. At the beginning of his individual voir dire on the death penalty, Manley volunteered that: “I have difficult problems with the capital punishment question, and at this point I don’t think I could really be an unbiased or—I am opposed to it.

I will put it that way.” The trial court then reviewed the allegations and charges in the case and asked whether he would refuse to vote for “murder in the first degree . . . knowing that to do so would obligate the jury to get into a . . . penalty phase of the trial?” Manley replied, “I would have a very difficult time of it, Your Honor, I would have a very difficult time.” The trial court then asked Manley whether he “would . . . refuse to vote for the truthfulness of the special circumstances . . . knowing that to do so would obligate the jury to get into the penalty phase?” Manley replied, “Yes, Ma’am.” The court questioned Manley as to whether he “would automatically and absolutely refuse to vote for such a penalty in any case?” Manley answered, “I probably would.

I probably would have to.” When the court repeated the question, Manley replied, “Yes Ma’am, I think I would.” No further questions were asked of Manley prior to his excusal. Although he may have responded equivocally to some of the court’s questions, Manley made it absolutely clear that his “attitude toward the death penalty would prevent [him] from making an impartial decision as to the defendant’s guilt.” (Witherspoon, supra, 391 U.S. at pp. 522-523, fn. 21 [20 L.Ed.2d at p. 785], italics omitted.) Under Witherspoon, therefore, excusal was proper.

Moreover, the trial court was in the best position to observe and evaluate Manley’s demeanor firsthand and could have reasonably understood the prospective juror’s responses to indicate he would never vote for the death penalty. (See Witt, supra, 469 U.S. at pp. 426-429 [83 L.Ed.2d at pp. 852-856, 105 S.Ct. at pp. 852-853]; Darden, supra, 477 U.S. at p. 178 [91 L.Ed.2d at pp. 154-155, 106 S.Ct. at p.2470].) We are convinced that Manley would have been unable to perform his duties as required by law and therefore was properly excused for cause. (Witt, supra; Witherspoon, supra.) Defendant additionally contends that the trial court committed reversible error by failing to sua sponte inform potential jurors that it was their civic duty to sit as jurors if they could subordinate their views and obey the laws of this state. (Witherspoon, supra, 391 U.S. 510; Witt, supra, 469 U.S. 412.) We find nothing in Witherspoon which obligates a trial court to so instruct the jury.

Moreover, the proposed instruction is unnecessary. A prospective juror who would refuse to vote for the death penalty under all circumstances is obviously unable or unwilling to set aside individual views concerning capital punishment. 2. Pretrial Notice of Evidence to Be Introduced in the Penalty Phase Defendant maintains the prosecution violated the

section 190.3 notice requirement and therefore the trial court erred in permitting evidence in aggravation to be introduced at the penalty trial. We disagree.

Section 190.3 provides, in pertinent part: “Except for evidence in proof of the oifense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial.” The purpose of the statutory notice is to advise an accused of the evidence against him so that he may have a reasonable opportunity to prepare a defense at the penalty trial. (See Keenan v.

Superior Court (1981) 126 Cal.App.3d 576, 587 [177 Cal.Rptr. 841].) In the instant case defendant moved prior to the penalty trial to preclude the evidence in aggravation on the sole ground that the district attorney “failed to presen[t] in writing . . . notice of the specific areas of aggravation which would be presented at the penalty phase.” (Italics added.) At the hearing on the motion, defense counsel admitted that, prior to the guilt trial, the prosecutor had informed him Saucedo and Torres would be testifying at any penalty trial.

He further acknowledged that he also represented defendant on the Hosey murder charge, implying that he was familiar with the incident which would serve as the basis for the aggravating evidence presented at the penalty trial. In our view the district attorney adequately fulfilled the statutory notice requirements. Although written notice is preferable and should be the norm, nowhere does the statute mandate that the notice be in writing. Defendant had full knowledge, prior to the start of the guilt trial, of the aggravating evidence to be introduced at a potential penalty trial.

The evidence therefore was properly admitted. 3. Other-crimes Evidence

a) Admissibility of Evidence Defendant attacks the constitutionality of

section 190.3, subdivision (b), which permits the jury to consider evidence of unadjudicated criminal activity as an aggravating factor, citing State v. Bartholomew (1984) 101 Wn.2d 631 [683 P.2d 1079] and State v. McCormick (1979) 272 Ind. 272 [397 N.E.2d 276]. A majority of this court rejected an identical contention in People v. Balderas (1985) 41 Cal.3d 144, 204-205 [222 Cal.Rptr. 184, 711 P.2d 480].

b) Robertson Error Defendant correctly contends that the trial court erred in failing to instruct the jury that it could not consider the Hosey murder as an aggravating factor unless it found beyond a reasonable doubt that defendant committed the crime. (People v. Robertson, supra, 33 Cal.3d at pp. 53-54.) We determine, however, that the error was harmless. Prior to Robertson, we held, in a long line of cases, that during the penalty phase the jury must be instructed that it “may consider evidence of other crimes only when the commission of such other crimes is proved beyond a reasonable doubt.” (People v.

Stansworth (1969) 71 Cal.2d 820, 840 [80 Cal.Rptr. 49, 457 P.2d 889]. See, e.g., People v. McClellan (1969) 71 Cal.2d 793, 805 [80 Cal.Rptr. 31, 457 P.2d 871]; People v. Varnum (1969) 70 Cal.2d 480, 485-486 [75 Cal.Rptr. 161, 450 P.2d 553]; People v. Polk (1965) 63 Cal.2d 443, 450-451 [47 Cal.Rptr. 1, 406 P.2d 641]; People v. Terry (1964) 61 Cal.2d 137, 149, fn. 8 [37 Cal.Rptr. 605, 390 P.2d 381].) In Robertson, supra, 33 Cal.3d 21 we interpreted the 1977 death penalty statute to include the requirement that the trial judge instruct on the higher standard of proof for other-crimes evidence.

It was implicit in our decision that the rule is an evidentiary one and is not constitutionally mandated.

The Robertson rule merely serves a foundational purpose requiring a higher standard of proof before evidence of other crimes may be considered by a jury, since such evidence is often of “overriding importance ... to the jury’s life-or-death determination . . . .” (Robertson, supra, 33 Cal.3d at p. 54.) In Robertson the “other crimes” evidence consisted of a rape victim’s unsubstantiated testimony during the guilt phase that (1) more than a year before the charged offenses defendant committed numerous violent crimes against her, in addition to the rape for which he was convicted, and (2) defendant told her he had previously killed two other people.

In a plurality opinion we determined that failure to instruct on the higher standard of proof was prejudicial. (33 Cal.3d at pp. 54-55, 63 (Broussard, J., conc.).) We indicated “[t]he danger of prejudice was . . . most pronounced with respect to defendant’s alleged confession . . . —a confession which, but for counsel’s inexplicable failure to object, never should have been before the jury.” (Id. at p. 54.) Here, by contrast, there was ample evidence, properly admitted, establishing that defendant had killed Hosey. Saucedo testified in great detail as to defendant’s conduct in the stabbing of Hosey.

While Patricia Torres did not witness the actual killing, her statements to the district attorney corroborated much of Saucedo’s testimony. Torres stated, for example, that it was defendant who held the knife during the argument. During cross-examination of Saucedo, defendant attempted to discredit Saucedo’s testimony and suggested by his questioning that Saucedo was in fact responsible for Hosey’s death. Nonetheless, defendant’s participation in the stabbing of Hosey was not substantially controverted in the penalty phase.

Defendant did not present any independent evidence to dispute Saucedo’s testimony that defendant repeatedly stabbed Hosey. Neither did defendant challenge the fact of his presence at the time of the killing. On this record, we conclude that the failure to instruct on the higher standard of proof could not have affected the jury’s consideration of the other crimes evidence.

c) Unanimous Agreement In a related argument, defendant urges us to adopt the rule that the jury must be instructed not to consider evidence of “other crimes” unless it unanimously agreed that the prosecution met its burden of proof on such crimes. In so asserting, defendant misunderstands the penalty determination process.

Section 190.3 provides that a jury may consider a number of factors in determining the appropriate penalty. To impose a penalty of death, each juror must evaluate the evidence and then unanimously determine that the aggravating factors outweigh the mitigating factors. There is no requirement that the jury agree on which factors were used to reach the decision. It is therefore unnecessary that the entire jury find the prosecutor met his burden of proof on the “other crimes” evidence before a single juror may consider this evidence.

Moreover, as we previously indicated, the Robertson rule is statutorily based and serves a foundational purpose. Generally, unanimous agreement is not required on a foundational matter. Instead, jury unanimity is mandated only on a final verdict or special finding. A defendant is, of course, entitled to a unanimous jury verdict in the final determination as to penalty. The jury here was so instructed. (See People v. Ghent, supra, 43 Cal.3d at p. 739.) We also reject defendant’s contention that the trial court erred in failing to instruct sua sponte on the elements of murder applicable to the Hosey stabbing.

We recently held that a trial court has no duty to instruct on the elements of the other crimes introduced at the penalty phase unless it is requested to do so by the defendant. (People v. Phillips, supra, 41 Cal.3d at p. 72, fn. 25; People v. Davenport (1985) 41 Cal.3d 247, 281-282 [221 Cal.Rptr. 794, 710 P.2d 861].) Defendant made no such request.

d) Accomplice Instruction In view of Saucedo’s testimony, defendant contends the trial court erred by refusing to give a requested accomplice instruction pursuant to

section

Section 1111 provides that “[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” The

section defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” The Attorney General acknowledges that the rule requiring corroboration of accomplice testimony applies at the penalty phase of a capital trial. (People v. Varnum (1967) 66 Cal.2d 808, 814-815; People v. McClellan, supra, 71 Cal.2d pp. 807-808; People v.

Washington (1969) 71 Cal.2d 1061, 1092 [80 Cal.Rptr. 567, 458 P.2d 479].) He contends, however, there was no error since Saucedo was not an accomplice as a matter of law. (People v. Mayberry (1975) 15 Cal.3d 143, 159 [125 Cal.Rptr. 745, 542 P.2d 1337].) He alternatively asserts that if there was error, it was not prejudicial. Since we conclude that any error was harmless, we need not consider the question of whether Saucedo was an accomplice. (See People v.

Hathcock (1973) 8 Cal.3d 599, 617, fn. 17 [105 Cal.Rptr. 540, 504 P.2d 476].) It has been recognized that the failure to instruct on accomplice testimony pursuant to

section 1111 is harmless where there is sufficient corroborating evidence in the record. (People v. Hathcock, supra, 8 Cal.3d at p. 617; People v. Washington, supra, 71 Cal.2d at pp. 1092-1093.) The requisite corroboration may be established entirely by circumstantial evidence. (People v. Thurman (1972) 28 Cal.App.3d 725, 730 [104 Cal.Rptr. 804]; People v. Mardian (1975) 47 Cal.App.3d 16, 43 [121 Cal.Rptr. 269].) Such evidence “may be slight and entitled to little consideration when standing alone.’ [Citations.]’’ (People v. Tewskbury (1976) 15 Cal.3d 953, 969 [127 Cal.Rptr. 135, 544 P.2d 1335]; accord People v.

Hathcock, supra, at p. 617.) Moreover, “ ‘only a portion ... of the accomplice’s testimony need be corroborated’ ” (People v. Thurman, supra, at p. 729) and it is “ ‘not necessary that the corroborative evidence . . . establish every element of the offense charged.’ [Citations.]” (People v. Hathcock, supra, at p. 617.) It is only required that the evidence “ ‘ “tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth.” ’ ” (People v.

Thurman, supra, at p. 729.) Applying the foregoing principles, we are satisfied that Patricia Torres’s statement to the district attorney provided sufficient corroboration of Saucedo’s testimony. As previously discussed, Torres’s description of the events which led to the stabbing closely matched Saucedo’s version of the incident. This evidence was enough to connect defendant with the killing and therefore to support the credibility of Saucedo. (Compare People v. Washington, supra, 71 Cal.2d at pp. 1091-1093 with People v.

McClellan, supra, 71 Cal.2d at pp. 806-808.) The fact that Torres did not personally witness the stabbing is irrelevant since it has been held that eyewitness corroboration is unnecessary. (See, e.g., People v. Washington, supra, at p. 1093; People v. Thurman, supra, 28 Cal.App.3d at pp. 728-729; People v. Mardian, supra, 47 Cal.App.3d at pp. 43-44.) Moreover, even if there were insufficient corroboration, reversal is not required unless it is reasonably probable a result more favorable to the defendant would have been reached. (People v.

Mayberry, supra, 15 Cal.3d at p. 159.) The purpose of an instruction pursuant to

section 1111 is to compel the jury to view accomplice testimony with distrust and suspicion. (People v. Tewksbury, supra, 15 Cal.3d at p. 967.) Here, the jury had before it ample information suggesting that Saucedo’s testimony may not have been completely trustworthy. For example, Saucedo testified that he earlier lied about his own involvement in the killing of Hosey and that he was given a reduced sentence with no additional jail time in exchange for his testimony. Upon a review of the entire record, we are convinced that it was harmless error to fail to instruct the jury on the requirement that accomplice testimony be corroborated. 4. Jury Instructions

a) Instructions on Mitigation, Discretion and Sympathy At the penalty phase the trial court instructed the jury in the former version of CALJIC No. 8.84.1 without clarifying that subdivision (

k) of

section 190.3 permits the jury to consider any aspect of the defendant’s character or record as mitigating evidence (see People v. Easley, supra, 34 Cal.3d 858, 878, fn. 10) and instructed it pursuant to former CALJIC No. 8.84.2 that it “shall” impose a sentence of death if it should find that the aggravating factors outweighed the mitigating circumstances, without clarifying the scope of its discretion pursuant to People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17 [230 Cal.Rptr. 834, 726 P.2d 516], reversed on other grounds sub nom. California v. Brown, supra, 479 U.S. 538 [93 L.Ed.2d 934].

Defendant claims the failure to give the Easley and Brown clarifying instructions constitutes reversible error. He additionally contends that the trial court was under a sua sponte duty to instruct the jury that it could consider sympathy in determining the penalty verdict. He argues that without such an instruction, the jury may have erroneously believed that CALJIC No. 1.00, which was given at the guilt phase, applied to the penalty phase. We disagree.

(1) No-sympathy Instruction In People v. Easley, supra, 34 Cal.3d 858, we held that it was federal constitutional error to give an antisympathy instruction at the penalty phase of a capital trial. (34 Cal.3d at p. 876.) Here no such instruction was given. Neither the trial court nor the prosecution told the jury that it could not consider sympathy. Nor is there any indication that the jury was misled into applying the antisympathy guilt phase instruction at the penalty phase. (Cf. People v.

Rodriguez (1986) 42 Cal.3d 730, 784-786 [230 Cal.Rptr. 667, 726 P.2d 113].) We conclude that the trial court did not err in failing affirmatively to instruct the jury at the penalty phase that it could consider sympathy.

(2) Mitigating Evidence In Easley, supra, 34 Cal.3d 858, we also discussed the constitutional requirement that a jury be permitted to consider any mitigating evidence proffered by the defendant when it determines whether death is the appropriate penalty. (See Eddings v. Oklahoma (1982) 455 U.S. 104 [71 L.Ed.2d 1, 102 S.Ct. 869]; Lockett v. Ohio (1978) 438 U.S. 586 [57 L.Ed.2d 973, 98 S.Ct. 2954].) We observed that a jury could erroneously interpret the words of

section 190.3, subdivision (

k) to require consideration of only that mitigating evidence which relates to the crime itself. We therefore imposed the prospective requirement that “trial courts . . . inform the jury that it may consider as a mitigating factor ‘any other circumstance which extenuates the gravity of the crime . . .’ and any other ‘aspect of [the] defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death.’ [Citation.]” (Easley, supra, 34 Cal.3d at p. 878, fn. 10.) In People v.

Brown, supra, 40 Cal.3d 512, we reaffirmed the importance of an Easley clarifying instruction in order to inform the jury that it may reject death on the basis of any relevant evidence or observation. We stated, however, that the failure of trial courts prior to Easley to give the clarifying instruction does not necessarily invalidate a death penalty verdict.

Rather, we explained we would review each prior case “on its own merits to determine whether, in context, the sentencer may have been misled to defendant’s prejudice about the scope of its sentencing discretion under the 1978 law.” (Id. at p. 544, fn. 17.) It seems clear that our Brown standard, supra, comports with federal law. As we recently stated in People v.

Ghent, supra, 43 Cal.3d 739, a majority of the justices of the United States Supreme Court, upon reviewing that portion of Brown relating to the penalty phase antisympathy instruction, “stressed the necessity of reviewing the record in each case to determine whether the jury instructions, taken as a whole, and read in conjunction with the prosecutor’s arguments, adequately informed the jury of its responsibility to consider all of the mitigating evidence in the case.” (43 Cal.3d at p. 777, citing California v.

Brown, supra, 479 U.S. 538, 546 [93 L.Ed.2d 934, 943, 107 S.Ct. 837] (conc. opn. by O’Connor, J.), [93 L.Ed.2d at p. 952] (dis. opn. by Brennan, J.), 547 [93 L.Ed.2d at p. 943] (dis. opn. by Blackmun, J.).) In the instant case, no character or background evidence was presented in either the penalty or the guilt phase.

At the conclusion of his argument, the prosecutor told the jury, “I ask you to follow the law and find the factors in aggravation overwhelmingly outweigh whatever mitigation that [defense counsel] wants to talk about.” During his argument, defense counsel spent very little time discussing any mitigating factors. He briefly mentioned as mitigating factors defendant’s “lack of deceit,” the presence of an accomplice at the mini-market, and the fact that defendant is a “young man” and has asked the jury to send him to prison. He additionally stated, “[Defendant is] not the same person as he was then two years ago.

You can observe that. His family sat over here. He has a family. They care about him. They have been sitting right over there most of the time.” Given the meager mitigating evidence in the record and the absence of any misleading argument to the jury, we do not see how the court’s failure to tell the jury that it could consider all aspects of the defendant’s character or background could possibly have misled the jury. Accordingly, we find no error. (See People v. Ghent, supra, 43 Cal.3d at pp. 777-778.)

(3) Sentencing Discretion The jury here was instructed, “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” (CALJIC No. 8.84.2.) Defendant argues that this instruction precluded the jury from exercising its sentencing discretion by telling the jury that the death penalty is mandatory if no evidence in mitigation is presented. (See Lockett v. Ohio, supra, 438 U.S. 586, 604 [57 L.Ed.2d 973, 989]; Woodson v.

North Carolina (1976) 428 U.S. 280, 304-305 [49 L.Ed.2d 944, 961, 96 S.Ct. 2978] (plur. opn.).) In Brown, supra, 40 Cal.3d at page 544, we upheld the 1978 death penalty statute against a challenge that “it withdraws constitutionally compelled sentencing discretion from the jury.” We acknowledged that the words “ ‘shall impose a sentence of death’ ” leave room for some confusion regarding the scope of the jury’s discretion.

We stated, however, that whether the jury has been misled so as to prejudice defendant depends on a case-by-case analysis. (Id. at p. 544, fn. 17.) The prosecutor in the instant case emphasized to the jury that it was the ultimate decisionmaker. He stated, “You will be told if you conclude that the aggravating circumstances o

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